CAS rules on UCI appeal, suspends Ullrich for two years

The International Court of Arbitration for Sport has ruled largely in favor of a UCI appeal, finding former Tour de France winner Jan Ullrich guilty of doping offenses related to the 2006 Operación Puerto investigation and annulling all of his results back to May of 2005.

The three-member CAS panel issued a two-year suspension of the now-retired rider, banning him from the sport until August 22, 2013. The decision represents a minor victory for Ullrich in that the panel rejected a UCI request that the 38-year-old rider be banned from the sport for life.

The panel found, however, that there was sufficient evidence that Ullrich had enlisted the medical services of Dr. Eufemiano Fuentes, the Madrid-area gynecologist whose offices were raided as part of the Puerto investigation in May of 2006. It was in those raids that investigators from the Spanish Guardia Civil seized performance-enhancing drugs and more than 100 blood bags, many of which were subsequently linked to high profile riders.

Ullrich was among several riders named in the investigation and was suspended, along with teammate Óscar Sevilla, by the T-Mobile team on the eve of the 2006 Tour de France. Ivan Basso (CSC), Francisco Mancebo (AG2R) and five members of the Astana-Würth (formerly Liberty Seguros-Würth) team, including Alberto Contador, were also excluded from that year’s Tour. Contador was among several riders subsequently cleared of charges in the case, Basso later served a suspension and returned to the sport, but Ullrich’s career was effectively derailed by the allegations.

Jurisdictional and procedural questions
Based on a report from the Guardia Civil, the UCI had requested that the Swiss Cycling Federation initiate disciplinary action against Ullrich in 2006. It wasn’t until 2009 that the Swiss Olympic Committee ruled that Antidoping Schweiz lacked authority to discipline the German rider, whose Swiss license had expired in October of 2006.

That triggered a 2010 appeal from the UCI, which sought to annul all of Ullrich’s results back to 2002 and to impose a life-time ban. Ullrich’s legal team challenged the UCI’s authority to discipline the rider since he had already retired and was no longer subject to the Swiss governing body’s authority.

Furthermore, Ullrich claimed that he couldn’t be subject to the actions of the disciplinary panel since Antidoping Schweiz wasn’t even in existence when his license lapsed, meaning that he had never formally agreed to be subject to its jurisdiction.

Ullrich’s attorneys raised a number of other procedural claims in the rider’s defense, but also argued that if those were rejected that any disciplinary actions be referred back to the Swiss federation, rather than being imposed by CAS.

The CAS panel rejected the bulk of Ullrich’s arguments, noted that the UCI retained authority over Ullrich and concluded that any resulting sanction could be imposed by the appeals panel itself.

Probative value of evidence and no factual defense
The panel then found that DNA evidence showed that Fuentes was in possession of Ullrich’s blood and that there was no medical justification for the storage of the rider’s blood other than for purposes of performance-enhancement.

“The report, prepared by Dr. Dirk Porstendörfer, concluded that the samples provided by Ullrich matched the genetic materials provided by the Spanish Civil Guard with an extremely high degree of probability (one in six billion),” the panel noted.

The panel noted that Ullrich’s own financial records showed that Ullrich had paid Fuentes in excess of 80,000 euros for medical services.

“Ullrich’s bank statements … show a payment to Dr. Fuentes in 2004 in the amount of €25,003.20,” the panel reported, “and a second payment in 2006 to a numbered Swiss HSBC bank account in the amount of €55,000 which HSBC has confirmed was also associated with Dr. Fuentes during that time period.”

Spanish investigators had also provided the UCI with evidence that Ullrich had made frequent trips to Fuentes’ offices in the years before the 2006 Puerto raids.

“The UCI has offered into evidence documents obtained from the Spanish Civil Guard, which the Spanish Civil Guard seized or otherwise obtained as part of its Operation Puerto investigation or from other sources,” the CAS panel wrote. “These documents include: (1) Documents evidencing travel by Ullrich to Madrid for reasons that are not known to be related to cycling events. (2) Calendars seized from Dr. Fuentes that use a code to record the withdrawal of blood from athletes on specified dates, and inventories of fridges and freezers containing blood bearing the date of extraction – since the blood samples can be associated to particular individuals, read together the inventory and the calendar are a guide to the dates when Ullrich is alleged to have provided blood to Dr. Fuentes for storage.”

In concluding its evidentiary analysis, the CAS panel expressed “surprise” that Ullrich’s entire legal strategy was based on procedural and jurisdictional challenges and included no direct challenge of any the evidence presented.

“Ullrich’s silence in this respect is both notable and surprising, given the vigour with which he has otherwise contested the UCI’s allegations,” the decision noted. “Despite the Panel’s surprise in this respect, it is of no consequence to its ultimate decision; the UCI rules do not contain a provision that would permit a negative inference to be drawn from efforts to avoid addressing the substance of an allegation of an antidoping rule violation.”

While no negative inference could be directly drawn by the absence of a defense on Ullrich’s part, the panel did note that there was compelling evidence to conclude that there was a doping violation and nothing had been presented to impeach that evidence.

“Given the volume, consistency and probative value of the evidence presented by the UCI, and the failure of Jan Ullrich to raise any doubt about the veracity or reliability of such evidence, this Panel came to the conclusion that Jan Ullrich engaged at least in blood doping in violation of Article 15.2 of the UCI Anti-doping Rules.”

No life-time ban
The CAS panel, however, rejected a UCI call to impose a life-time ban and to annul Ullrich’s results all the way back to 2002. The UCI based its request on the fact that the Puerto case constituted Ullrich’s second doping violation and that UCI and WADA rules called for the imposition of a life-time suspension. Ullrich was found to have used amphetamines (reportedly the drug ecstasy) while partying with friends in 2002.

The CAS panel noted that amphetamines had since been reclassified as being banned only if found in an in-competition test.

The panel concluded that the 2002 violation would no longer qualify has a doping offense and, therefore, did not warrant the imposition of a life-time ban.

“In short, were Ullrich to be found to have ingested amphetamines out of competition today,” the panel reasoned, “he would not have committed an anti-doping violation.”

Ullrich’s suspension expires in 2013, when the man who became Germany’s first-ever Tour de France winner in 1997 will be 40 years old. It’s doubtful that Ullrich ever had plans to return to competition, since he formally announced his retirement in February of 2007. A suspension, however, also includes a ban on his participation in the sport in any other capacity, including coach, manager or sponsor.

Wednesday’s ruling also strips Ullrich of results dating back to May of 2005 after the panel concluded that the evidence presented “established that Jan Ullrich was fully engaged with Dr. Fuentes’ doping programe at least from that date.” Most significantly, that would negate Ullrich’s third-place finish in the 2005 Tour de France and his overall win at the 2006 Tour de Suisse.

The court also ordered Ullrich to pay 10,000 Swiss francs (8300 euros) to defray a portion of the legal costs of the case.

The Explainer: Thoughts on the Contador decision

Dear Readers,
It’s been a little more than a day since the International Court of Arbitration for Sport released its decision in the Contador case.

The big news is already out, mainly that Alberto Contador was found to be guilty of having violated Articles 21.1 and 21.2 of the UCI’s Anti-Doping Rules. That resulted in a two-year suspension, officially beginning on January 25, 2011 and, with credit applied for the time he served on provisional suspension, ending on August 5 of this year.

By finding that a violation occurred during the event, Contador was automatically stripped of his victory at the 2010 Tour de France. Furthermore, those results he acquired during the period now deemed to be part of his suspension would also be negated. Most notably, that means he is no longer the official winner of the 2011 Giro d’Italia.

Okay, all of that stuff we know, but a number of you raised questions about the decision, the defenses raised, the allegations made and the term of the suspension itself. Fortunately, the three-member CAS panel spelled out its reasoning quite carefully in a well-drafted opinion. I know that many of us don’t consider a 98-page legal document to be the height of recreational reading and it took me a while to sort through the thing myself. I was actually pretty impressed, though, by the work of the three attorneys on the panel, who may have taken a little more time than any of us would have liked, but did a thorough job in explaining their reasoning.

So, using the decision letter, the UCI’s Anti-Doping Rules and the WADA Code as guides, let’s tackle a few of the more common questions I’ve received over the last day or so. The questions that appear below may represent edited or merged questions I’ve received. Some have come from emails sent directly, via Twitter and Facebook and in the comments section below the original news story.

New math?
Is this some sort of “new math” CAS is using? It’s a two-year suspension and he spent all of last year racing. Still, he’s coming back in time for this year’s Vuelta. To me that looks like a six-month suspension.
— John

Dear John,
It might be good to start by asking why Contador got to ride in 2011. Look at the cases involving Floyd Landis and Tyler Hamilton for purposes of contrast. Contador managed to put in a full season last year. Conversely, Hamilton and Landis did not compete during the entire process, including the wait for the appeal.

The biggest difference, of course, is that both Landis and Hamilton lost their cases in the first round, when the case was originally heard by the American Arbitration Association. Contador, whose case was originally heard by a doping panel, assembled by the Real Federación Española de Ciclismo (RFEC), actually won his case … at least in that first round.

Once the RFEC issued a decision in his favor, Contador was free to ride. He had been cleared of the charges and in the event of an appeal, the original ruling stands until its reversed by CAS. That’s the same reason why Landis and Hamilton were not able to ride. They had been found in violation of the rules and those decisions would stand, unless reversed on appeal.

Contador did accept a provisional suspension and did not compete once he was notified of the positive result from the 2010 Tour on August 26. The RFEC issued a ruling in Contador’s favor on February 14, 2011, at which point he was again free to ride. He had, therefore, already served a suspension of five months and 19 days. The UCI Anti-Doping Rules specifically state that time served under a provisional suspension is to be credited against any future penalty relating to the violation at issue.

Interestingly, the CAS panel noted that on January 25 of 2011 (keep that date at the back of your mind) the RFEC actually floated a “plea agreement” past Contador, which would have resulted in the negation of his 2010 Tour results and a one-year suspension. On February 7, 2011, he turned down that offer and the RFEC panel ruled in his favor a week later.

It wasn’t until March 24 that the UCI announced its intention to appeal the RFEC ruling to CAS. WADA filed notice of its plan to appeal five days later.

In imposing its penalty, the CAS panel ruled that Contador’s suspension officially began on January 25, 2011, the day the RFEC floated its initial plea deal to Contador. A two-year suspension would carry through to January 25, 2013, but then the rules call for him to be credited with time served, so he is once again eligible to ride on August 5 of this year.

Contador’s attorneys did argue that it would be “unfair” to negate any results he achieved between the time of the RFEC ruling and the CAS decision, but the panel disagreed. Among the cases the attorneys cited was that of Alejandro Valverde, some of whose results earned prior to the full adjudication of his case were left intact.

It’s worth noting here that CAS issued its ruling in the Valverde case in May of 2010. It imposed a two-year suspension, back-dating it to January of 2010. By doing so, Valverde’s results earned between January and May were in fact erased from the record books. By that standard, the CAS panel said that it would be inappropriate to impose a sanction that begins in January of 2011 and then leave intact the results Contador earned after that date.

So, confusing as it might seem, the CAS panel did carefully work its way through the whole process and imposed what it found to be a fair penalty.

Why did this all take so long?
I’ve read in your column and others that there is no acceptable level of clenbuterol and that it’s a simple strict liability offense. It was there. Contador didn’t dispute the test result, but tried to explain it away. What was so complicated that made this thing take almost two years?
— Elaine

Dear Elaine,
True. It’s been 19 months since Alberto Contador tested positive for minute traces of Clenbuterol and it was only yesterday that CAS issued a final decision in the case. In Hamilton and Landis, the process took even longer.

The author of the adage that “the wheels of justice grind slowly,” could have had the whole WADA system in mind when he penned that one. Look at some of the most high-profile doping cases in cycling to get a feel for it if you have your doubts. Hamilton, Landis, Valverde, Ullrich … they all took years to resolve. Even if they had been successful in their appeals, their careers had effectively been on hold for a period almost as long as their original suspensions.

While the rules may appear to be simple, that isn’t always the case. I guess the best way to describe the problem is that in doping cases, sometimes strict liability isn’t actually so strict.

Generally speaking, a strict liability offense is one in which the prosecution need not prove the element of intent.

Since I just handled a case involving a defendant charged with possession of a controlled substance, let’s look at the law my client was alleged to have violated:

It is unlawful for any person within the city limits knowingly or intentionally to possess a controlled substance unless the substance was ….

Do you see that those two key words in there? “Knowingly” or “intentionally?” In order to convict my client, the prosecution would have to prove beyond a reasonable doubt that my client actually knew he had the controlled substance in his possession. (Admittedly, in most cases, that’s not a huge burden for the prosecution.)

Conversely, there is no intent element when it comes to speeding. If you get pulled over for going 40 in a school zone, the cop, the prosecutor and the courts don’t give a rat’s rear if you knew you were speeding or if you knew it was a school zone. You were operating the vehicle and the vehicle was going faster than the posted speed limit. Period. No ifs, ands, or buts. That is strict liability in its purest form.

Now, CAS has in the past offered a little wiggle room in these strict liability cases. In a sense, that wiggle room gives the athlete the opportunity to put forward an explanation that would show him to be a completely innocent victim of circumstance. It means that the athlete has the chance to raise an “affirmative defense.” That does, however, shift the burden of proof over to the defendant.

Take for example the case of table tennis player Dimitrij Ovtcharov. He played an event in China and, soon after, tested positive for clenbuterol. In his defense, he offered evidence that, although illegal, clenbuterol is still widely used in China and that he was very likely exposed through food he consumed on that trip. The German Table Tennis Federation ruled in his favor, the international governing body did not appeal and he was free to go.

While those really-good-explanation defenses might be considered, the CAS takes a really narrow view of them. There have been several cases in which riders have accidentally ingested banned substances by consuming contaminated food supplements.

For example, in USADA v. Moninger, USADA v. Neben and USADA v. Oliveira, athletes were able to show that they consumed contaminated supplements, but hearing and appeals panels still cited Article 21.1-(1)(1) of the UCI Anti-Doping Rules, which states:

It is each Rider’s personal duty to ensure that no Prohibited Substance enters his body. Riders are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an antidoping violation under article 21.1.

In those cases, the explanation served only as a mitigating factor – information that prompted the court to reduce the penalty due to the absence of intent.

But Contador was going for full exoneration and was offering his own version of the Ovtcharov defense. To do that he had to present evidence to support the claim. In a heavily regulated market like that in Europe, providing that evidence might be harder than it would be were one to raise that same claim when referring to the unfettered market in that bastion of unregulated free-enterprise, known as “China.”

While the sample in question was provided on July 20, 2010, it wasn’t until November 8, that the UCI formally asked the RFEC to begin disciplinary proceedings. That actually moved pretty quickly and, as I mentioned before, the decision was released in February.

It then took another six weeks or so before the UCI and WADA decided whether to appeal the RFEC ruling. When they did appeal, they raised a number of peripheral issues, including the blood transfusion theory and the whole “plasticizer” question.

That added a whole new complexity to the case and there were a number of extensions and continuances granted as both sides sought to sort through some fairly complicated evidence. Then, as frustrated cycling fans know, the CAS panel took its own sweet time in issuing a decision. Again, the panel said, it was due to the complexity of the issues presented … even though they then disregarded the most complex charges and defense and came up with their own theory (see below).

It took time, but because of the complexity of some of the issues, it actually moved along reasonably well … at least in terms of how lawyers might view it. When you’re looking at it from an athlete’s perspective – and a finite window of opportunity to have a career—this process is painfully slow.

Was it the plastic?
What’s your take on the whole plasticizer question? I thought it was interesting and am wondering if that might have tipped the balance for CAS.
— Eric

I do not think the transfusion/plasticizer issue did anything but complicate and delay the process. A careful reading of the decision letter shows that the CAS panel actually spent a great deal of time considering the UCI/WADA allegation that the trace amounts of clenbuterol were the result of a transfusion.

They ruled that the evidence did not support the allegation that Contador had transfused the day before his July 21st blood sample was taken.

In the absence of a specific WADA rule or substantial peer-reviewed studies regarding what levels of plasticizers one might expect to see in a normal blood sample, the CAS panel wisely reviewed Contador’s biological passport data instead and found no evidence that he had transfused.

Interestingly, too, was the introduction of polygraph evidence that purportedly showed that Contador was not lying when he denied that claim.

In order to corroborate his assertion that he did not undergo a blood transfusion of any kind at the relevant time, the Athlete voluntarily underwent a polygraph examination on 3 May 2011. In doing so, Mr. Contador was asked and answered two series of question(s) ….

The results of the polygraph test were clear according to Dr. Louis Rovner, the specialist who administered the exam. His results were shared with an outside expert, who agreed with the conclusions and reported to the CAS panel that “After a complete review of all of the materials supplied, and both a semi-objective and objective assessment of the recorded physiological data, I concur with with Dr. Rovner’s findings that Alberto Contador was truthful when he responded to the relevant questions asked in each of his … examinations.”

The CAS panel reviewed the UCI/WADA allegations and pretty much lumped them in with Contador’s tainted beef defense, concluding that both claims lacked sufficient evidence to warrant consideration.

Oddly enough, the panel then went on to bring up the question of contaminated food supplements, despite the fact that neither Contador, the UCI nor WADA raise the issue.

In what has to be the weakest line of reasoning in the entire letter, the CAS panel posits its own contamination theory, even though a strict interpretation of the rules doesn’t require one. Then going even further out on a limb, the panel concludes that it was the most likely means by which Contador was exposed.

AC is stripped of titles. Does he have to give back the money? Since typically the money is distributed amongst the team, I like to picture AC going up to a masseur, to whom the TdF money represented a pretty significant bonus, and begging for the cash back.
— DStan58

Dear DStan58,
While tradition dictates that prize money is distributed among a grand tour winner’s teammates and support staff, the money is awarded to the rider himself.

The CAS ruling makes Contador responsible for returning those monies. It doesn’t matter if he spent that money in accordance with tradition or bought a Ferrari. He’s the one who has to pay it back. Perhaps his staff and teammates might feel a moral obligation to help him out, but they certainly have no legal obligation.
– Charles

The Explainer is now a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

Contador suspended, stripped of Tour and Giro titles

Nearly 19 months after his rest-day urine sample showed trace amounts of the banned bronchodilator clenbuterol, the International Court of Arbitration for Sport has stripped Alberto Contador of his titles at the 2010 Tour de France and 2011 Giro d’Italia and suspended him until August of this year.

In a 98-page decision issued on Monday, a three-member CAS panel ruled in favor of an appeal from the UCI and World Anti-Doping Agency challenging last year’s ruling by the Spanish Cycling Federation that Contador had accidentally ingested contaminated beef during a dinner in Pau, France.

The panel found no factual basis in Contador’s claim that the low levels of clenbuterol in his urine and subsequent blood samples were the result of the illegal use of clenbuterol by Spanish cattle producers. Conversely, the panel did not accept the Appellants’ claim that the presence of plasticizers in Contador’s blood was an indication that he had been engaged in blood doping, using blood stored from earlier in the season when he could have been using clenbuterol for its performance-enhancing qualities.

“Mr. Contador did not prove but should prove that he did ingest the specific meat he refers to for the meat contamination and that such meat contained the banned substance,” the panel noted. “In this respect, the UCI refers to reports concerning to the specific meat Mr. Contador considers as contaminated, which concluded that no contamination with clenbuterol is involved.”

Based on those findings, the panel reversed a February 14, 2011, ruling by the Spanish Cycling Federation that had cleared Contador and ruled in favor of challenges subsequently filed by the UCI and WADA.

Crediting Contador with time served during a provisional suspension, his two-year ban from the sport officially began on January 25, 2011. The suspension will total two years, but with credit applied for the time he served in the months immediately after he received notice of the test, he will be eligible to ride on August 5 of this year, meaning he could opt to compete in this year’s Vuelta. The decision means that Contador’s win at the 2010 Tour de France has been negated, giving the victory to Luxembourg’s Andy Schleck.

For his part, Schleck said he had no reason to celebrate.

“There is no reason to be happy now”, commented Schleck in a release issued by his team. “First of all I feel sad for Alberto. I always believed in his innocence. This is just a very sad day for cycling. The only positive news is that there is a verdict after 566 days of uncertainty. We can finally move on.”

“I trust that the CAS judges took all things into consideration after reading a 4,000 page file. If now I am declared overall winner of the 2010 Tour de France it will not make me happy. I battled with Contador in that race and I lost. My goal is to win the Tour de France in a sportive way, being the best of all competitors, not in court. If I succeed this year, I will consider it as my first Tour victory.”

Contador will also be stripped of any results and prizes he earned after the January 25, 2011, suspension went into effect, including his apparent victory in the 2011 Giro d’Italia. Michele Scarponi, who finished second in last year’s Giro, will be named the official winner of that race.

Contador, who has been competing in the annual Majorca Challenge, has not issued a statement in response to Monday’s CAS ruling. In the past, the 29-year-old Spanish cycling star has suggested that he might retire if he loses the case. Contador’s brother and manager, Fran Contador, told reporters on Monday that the rider has no plans to retire and will serve out his suspension and be ready to compete later this year. The route for the 2012 Vuelta features an exceptionally mountainous profile and some have suggested that it was designed with Contador’s talents in mind.

Alberto Contador and Saxo Bank general manager, Bjarne Riis, have scheduled a Tuesday press conference to discuss the ruling and the rider’s future plans.

The decision noted that the same panel will issue a separate ruling on a UCI request that it be allowed to fine Contador at least 2,485,000 euros in the case.

The Body or the Face

“The body or the face?” the loan shark’s muscle asks, a droll query from a guy with a square jaw and a fist like a cinder block. The clear implication is that, no matter the choice, it’s gonna hurt. A good outcome is no longer an option.

The Court of Arbitration for Sport (CAS), the place sports’ governing bodies go to when they’ve failed to govern effectively, might as well be giving pro cycling a choice between the body or the face right now. With a verdict coming in the appeal of Alberto Contador’s non-sanction for Clenbuterol doping, it’s important to recognize that, no matter the outcome, cycling’s gonna take a haymaker.

The 30 second version of the story is this: Alberto Contador tested positive for Clenbuterol at the 2010 Tour de France. The Spanish cycling federation (RFEC) opted not to suspend him. The UCI and WADA appealed that decision to CAS based on the WADA code of strict liability, i.e. that the athlete is 100% responsible for what goes into his or her body. Simply stated, if there’s dope, they doped.

Let’s not go any deeper into this case and it’s details than that. The details and the extremely long timeline of events only serve to obscure the underlying truths here. (If you need to play catch up, Padraig has written about the case extensively here, here and here.)

CAS is going to do one of two things. They’re going to uphold RFEC’s non-sanction of the rider, or they’re going to impose the standard two-year suspension that every other rider who’s tested positive has received. The body or the face.

If CAS decides that strict liability doesn’t pertain to Contador’s case, then a long list of suspended riders are going to have a serious grievance against the UCI. Think of Tom Zirbel or Fuyu Li, for example. Neither of those riders ingested a substance that anyone would argue helped them to win races, but they both served their suspensions. Strict liability, morally nettlesome as it may be, has been the law, so the possibility of CAS somehow striking it from the books, at least from a judicial point of view, will be bad for pro cycling. If an “I didn’t mean for it to be in my body” defense is allowed to stand, it then becomes open season, not just for Clenbuterol positives, but for any adverse analytical finding that might be attributed to contamination.

If, on the other hand, CAS follows precedent and suspends Contador, then  we’ll have to vacate the results of two Grand Tours, the 2010 Tour and the 2011 Giro, not to mention a whole host of individual stages and smaller, albeit not-insignificant, races. There will be history books to correct, riders to promote, prize money to redistribute, legends to be recast. Because of the stature of the rider, the damage to the sport will be massive, complicated and long-term. The sport’s reputation, which already sucks, will get worse. Sponsorships will be affected. People not named Contador will lose money and opportunities.

There is a third way, I suppose. The CAS could take a hybrid approach, crafting a sanction for Contador that takes into account the minute amount of Clenbuterol that appeared in his system, but still pays some respect to the strict liability rule.  Quite what that would be is hard to imagine, and if not a full blow to head or gut, still a stinger for a sport already on the ropes.

In fact, news out of Paris this week suggests that the CAS is not confining itself to issues of strict liability, that a partial examination of Contador’s tainted beef excuse IS being aired, and that the levels of Clenbuterol, minute by all accounts, are playing in front of the tribunal. If the CAS only concerns itself with the amount of the substance and its net effect, rather than possible reasons for its presence, we are likely headed for acquittal and all the fallout such a verdict will cause.

After all, these are the issues that have been examined ad absurdem by the UCI, WADA and RFEC over the last two years. “Did he dope?” is a different question than, “Did the doping help him win?” None of the answers are good ones.

The Contador case, as most in modern professional cycling, has gone on and on and on. The temptation to see the CAS verdict as a resolution is strong, but given the possible outcomes on the table, we should expect this mess to continue on for years to come. Shortly, we should know what the consequences are for Contador. The body or the face. But pro cycling is a long way from paying its debt to this particular loan shark.

 

Follow me on Twitter @thebicyclerobot!

 

The Ache

I ache.

I ache for Thomas Voeckler. I ache for Andy Schleck. I ache for the end of the Tour de France.

In a tweet today David Millar wrote that as he rode in his car back to the hotel they approached a rider in Europcar kit; they slowed and Millar turned to lock eyes with a “tired and broken” Voeckler, adding, “Tragic doesn’t come close to describe.”

The cynical among us will gouge Voeckler for hubris, for dreaming the impossible. To do so is to inject cyanide into the very notion of ambition. That he discovered immortality seemingly within his grasp and dared reach for it is to be human. I admire that he maintained humility enough to insist that he would lose the race even as it was obvious he’d mortgage his home for an extra 20 watts.

That he rode the finest time trial of his life today is, perhaps the greatest honor he could bestow on himself and the race; yes, he honored the Tour de France today with his ride. It was his greatest ride because it showed his real character. Unlike so many riders who slink to the back of the field to nurse their destroyed legs once a win slips from grasp, Voeckler did the unthinkable. He continued to ride like a contender, even when it would no longer reward him. How else do you tell the world you’ve come to believe, not just in yourself, but even that you’re a part of what may be a new cycling?

That again. Yes, I do believe that his performance says that the peloton is cleaner. Kolobnev and his new honorific aside—don’t get me started—what I hope, what I’d like to think is that for the riders who may really achieve something noteworthy, maybe they’ve gotten the message that those of us who actually care about the sport want them to do it without the drugs. Voeckler has, for my money, delivered the defining ride of this year’s Tour de France. I’ll always remember 2011 for Cadel Evans’ victory, but I hope that the years don’t fade Voeckler’s ride in yellow for me. For each of us who ever dared dream, his days in yellow and his ride today testify to what we may find within reach.

Next year, he’ll arrive with the bit between his teeth. For that, I can’t wait.

***

If you’d asked me yesterday how I’d feel once Evans accomplished what most of us thought was an essentially foregone conclusion, I’d have told you I’d be happy for him. He rode with confidence and authority. Who knows if the tactical genius that caused him to conserve when possible and burn any time he needed to deliver was his or his director’s. It hardly matters. His yellow jersey is our res ipsa loquitur.

What surprises me is how I view the remarkable reversal of fortune Andy Schleck has suffered. Second. Again. The comparisons to Raymond Poulidor are unavoidable now. Even if he does win someday, his record will be compared to every great rider who failed more than he succeeded. Unless, of course, this is the last of his non-wins for a while.

And while I do think he’s likely to win at some point, I’ll tell you now, unless Contador makes the same mistake again next year (if you can call victory in the Giro a mistake—and I know that’s a real stretch), the Spaniard will arrive at the start with a thirst for blood that even Eric Northman would admire. I don’t plan to bet against him.

I’ve been rough on Contador in the past. Let me say this: His ride will be a more enduring feature of this year’s race than Fränk Schleck’s was. He rode with determination and pride, even after he knew he couldn’t win. He never capitulated, and in that regard, he and Voeckler have something in common.

It’s fair to wonder if Contador will be at next year’s Tour, depending how the CAS proceeding goes. Its postponement has turned his case into a goat parade: something so stupidly slow and pointless that no one can bear to watch. Should the case against him be upheld and a suspension imposed, I say let it stand for time served. Re-writing this year’s Tour de France will be as distasteful as a shot of straight alcohol. Isopropyl, that is.

Whatever he may or may not have done last year was last year, if he doesn’t test positive this year, then let the clean result stand.

Back to Schleck the younger: I think I have some sense of his pain. The buildup to him taking the maillot jaune off Voeckler was so slow and yet seemingly assured as to be steamroller inevitable. To see him stripped of it only 24 hours later was a change in tempo that would rattle any audience. I wonder just how comfortable he allowed himself to get in that jersey. Did he sleep in it last night just so he could have it against his body for as long as possible? We can’t fault him for hoping; Voeckler taught that master class. Still, no one can be surprised by this outcome and there surely is pain in that for Schleck.

***

Tomorrow the Tour de France ends, and that is my biggest ache of all. For me, the end of the Tour is nearly the end of summer itself. Monday has the crushing letdown that December 26 did when I was a child. Perhaps this is what a heroin or coke addict feels when they crash. That first post-Tour ride bears an emptiness in the air. It’s as if summer itself has gone stale. I buck up after a few days, but it’s been this way for me since ’86.

Finally, cycling isn’t really known for tracking its own statistics particularly well. We roll blindly into each new season, often without any clue as to what the past tells us about it. A fair chunk of my work for peloton magazine has looked at the sport’s history and what it tells us about some of our greatest racers and races. While I think numbers can be manipulated for nefarious purposes with greased ease (just consider gasoline), the Tour has something to say about Evans’ looming win. Tomorrow afternoon, the Aussie will become—at age 34—the oldest first-time winner of the Tour de France in the modern age.

What I think this tells us is that as racers have become more disciplined about all aspects of their training, from diet to rest to number of days raced, they are extending their careers. This shouldn’t surprise us; crashes notwithstanding, this is how guys like Jens Voigt and Chris Horner remain useful—scratch that, strong—with their 40th birthday around the corner.

There may be hope for us all.

Vive le Tour.

Image: Chris Wallis, Photosport International

 

State of the Cycling World

When I woke this morning, the first thought I had was, “What other bad news will be revealed today?” I’m not one to experience ennui, but this morning, I didn’t have any energy to go for a ride, didn’t want to look at the news and really only wanted to hang out with my family and enjoy a leisurely morning.

None of those things happened, mostly because I did look at the news. For those who aren’t keeping score:

1)    The Tour de France champion tested positive.

2)    The president of the UCI denied that Contador was being investigated the day before he admitted the existence of said investigation.

3)    The Vuelta’s second place and a teammate tested positive.

4)    The home of Riccardo Ricco has been raided and unless Italian police don’t know what aspirin looks like, something suspicious was found in a cabinet belonging to a guy who has been convicted of doping once before.

5)    Oscar Sevilla has tested positive yet again.

6)    The sister of the winner of the Giro d’Italia isn’t permitted to attend sporting events because of her role in the distribution of doping products.

7)    Ex-Oakley employee Stephanie McIlvain put her finger in the dike against the many accusations against Lance Armstrong.

8)    Allen Lim told a grand jury that he wasn’t hired to help Floyd Landis dope.

9)    Operacion Puerto is to be closed and all the evidence destroyed. The truth won’t out.

The only good news for a jingoistic Yank rests on the shoulders of the world’s third-most-popular Taylor (let’s not forget Swift and Lautner), a 20-year-old who we all must hope never comes to the attention of the Eugenics movement. (If you can breed dogs, you can breed people, right?) Taylor Phinney’s gold and bronze medals in the U23 World Championships aren’t news, they are simply confirmations of his talent. With two more years in that category at the world championships, he could wind up the most-medaled U23 rider in history.

Let’s cover this in reverse order: The blood bags are going to be destroyed and we’ll never know the true depth of Fuentes’ business, but it a way, it’s such old news suspending a rider now based on that case seems kind of irrelevant. What’s significant here is the lack of institutional will to get to the truth and clean up sport. This is going to haunt us like a drunken kiss at a New Year’s Eve party.

How often does a job description reflect the job as performed? Who hasn’t had additional had additional duties thrust upon them out of necessity. The subtext here is that Allen Lim may not have admitted all the ways that he assisted Landis. Lim told ESPN.com, “When I worked with Floyd, I repeatedly told him that he didn’t need to dope and should not dope, and I was absolutely not hired to help him to do so.” Okay, so you weren’t hired to help him dope … but did you? Landis may seem kinda desperate and crazy, but no one has suggested that he’s trying to slaughter innocents. Are we really to believe that Landis would screw saint? That doesn’t fit the bill.

Despite the existence of an audio tape made my Greg LeMond in which Stephanie McIlvain reveals that she did hear Armstrong admit to using performance-enhancing drugs, the former Oakley employee—whose husband is Oakley’s VP of sports marketing—testified to a grand jury that she had no knowledge of Armstrong’s use of drugs or that she heard him admit to using them during a meeting with doctors at which Frankie and Betsy Andreu were present and which they claim she was present as well. One wonders what other questions she was asked besides those two; presumably it shouldn’t take seven hours on the witness stand to say “no” twice. While McIlvain has certainly protected Oakley’s (and by extension, Armstrong’s) interests, investigator Jeff Novitzky has secured perjury convictions against athletes who lied to a grand jury.

Elisa Basso, sister of Giro winner Ivan Basso and wife of former pro Eddy Mazzoleni was snared along with her husband as part of Operazione Athena. Mazzoleni was given a suspended sentence for his role in the drug dealing, while Elisa received a ban that stopped just shy of saying she can’t watch sports on television. Not only can she not work for CONI or any of the national governing bodies for sport in Italy, she can’t attend the events or even enter a place frequented by athletes or their coaches. And competing herself? No chance.

Oscar Sevilla, who tested positive for the EPO masking agent hydroxyethyl starch (HES) has been allowed to return to racing until his B-sample analysis is returned. Technically, the product isn’t banned, but its only use is to mask doping and it can only be administered by transfusion, which itself, is not permitted. Sevilla told Cyclingnews.com, “Let’s say that justice is done because there is no reason to suspend me. There can be no direct doping case, as with a forbidden substance, since hydroxyethyl is not on the banned list.” Even weirder, he added, “I take all the steps and face the situation. Ideally, the B sample will be negative. But if not, then the cycling federation will meet to decide on my case.” Ideally? Methinks the rider protest too little.

Some 50-odd tablets of unknown composition were found by Italian police in a cabinet at the home of Riccardo Ricco. Naturally, Ricco—let us not forget Ricco’s previous suspension for CERA use—claims they are nothing elicit.

Ezequiel Mosquera—the darling of the 2010 Vuelta—and his teammate David Garcia have both tested positive for HES—the same stuff Sevilla tested positive for—a substance of use exclusively to cyclists trying to hide evidence of transfusions or EPO use. Hmm, every positive for HES happens to be with a Spanish cyclist. Coincidence?

Credit or blame (depending on your outlook) that we know anything about Alberto Contador’s positive test can be given to German journalist Hans Joachim Seppelt with the news organization ARD. He specializes in doping stories and learned of Contador’s positive (presumably from the Cologne lab that did the testing) before the UCI had announced anything. When he approached Pat McQuaid, the UCI president denied knowing anything, yet less than 24 hours later a press release was issued. Based on what we know of the case—that clenbuterol and traces of a plastic used in transfusion bags were found in Contador’s urine—there seems to be ample evidence that a suspension is in order while the case is adjudicated. The question is why two months passed since the end of the Tour de France and the public is just now finding out; even Contador knew of the test result in late August.

Of course, the big news of the week is how Alberto Contador not only tested positive at the Tour de France, but the UCI gave him time to prepare a defense. While Mosquera and Garcia found out about their positives through the media, Contador got the bro’ heads-up.

Add to this the just-announced positive of Margarita Fullana for EPO. Fullana would have us believe she only used EPO this year, in which she got virtually no results, and not in previous years when she was blowing by the competition like the Road Runner going by the Coyote. Totaled, we have four positive tests announced in less than a week. Curiously, all of them are by Spanish riders. This little detail seems to suggest that Spain has a bigger problem with doping on a cultural level than any other nation in cycling. While it’s impossible to say that there is a permissive attitude toward doping in Spain, that nation is the highest ranked in cycling according to the UCI with 1868 points, compared to Italy’s 1071 and Belgium’s 882—and that’s even after points were subtracted following Alejandro Valverde’s suspension.

According to a poll in the Spanish paper Marca 78.5 percent of the Spanish people believe that Alberto Contador is innocent of doping. But that figure isn’t quite right. Newspaper polls are notoriously unrepresentative of the actual population; it’s much safer to say that of cycling enthusiasts who read Marca 78.5 percent believe Contador is innocent. Theoretically, this group is better educated about doping and ought to feature a higher percentage who accept that it’s very likely Contador received a transfusion during the Tour de France. Given the number of American cycling enthusiasts who can’t even contemplate the possibility that Mr. Big Shot doped, maybe we shouldn’t be too surprised by this.

Based on last week’s news, I’ve drawn three conclusions:

1)    Clenbuterol is the red herring in Contador’s doping case. There’s a reasonable argument to be made that Contador didn’t intend to dope using clenbuterol, as well as a reasonable argument that strict liability is an absurd standard by which to judge an athlete. However, the plasticizer present in Contador’s sample cannot occur from an unintended source. He got a transfusion and this, ladies and gentlemen, should not surprise us. This is how the game is played currently. I hate re-writing record books and results, but if we want a clean sport, chasing brilliant leads like this is how we’ll get there.

2)    McQuaid is a bigger problem than I thought and the UCI needs to clean house. Of course, that’s like suggesting to a hoarder that what they should do is toss out the junk and sweep the floor. There’s a fundamental problem with the UCI’s mission. It is charged with governing the sport by overseeing the promotion of races. If the sport of cycling suffers as a result of poor race promotion, the responsibility is the UCI’s. However, it is also charged with disciplining athletes who dope. Punishing your biggest stars is a conflict of interest if ever there was one. Clearly, WADA should have jurisdiction over informing the riders of positive tests and disciplinary proceedings should be turned over to CAS. After all, if WADA was charged with disciplining the athletes they tested, there would never be another false positive or flawed administration of a test. They would bat 1.000 against riders, which is pretty much where things stand.

3)    Something’s rotten in Spain. Again, it’s impossible to say where the root of the problem lies, but it strikes me as cultural on some level. Writing that troubles me. I’m not a bigoted guy, but we’ve seen statements from the head of the Spanish federation defending Valverde, an unwillingness by the Spanish judiciary to get to the bottom of Operation Puerto, Spanish cyclists testing positive at a rate far higher than cyclists from any other country. Of course, while it’s nice to have someone call out the Spanish federation, even if it is Pat McQuaid, what we need is a dog with some teeth to go after them.

And now Alberto Contador is threatening to quit the sport. Isn’t that like saying you hate the movies after being grounded? Seriously, though, has he read the Wikipedia entry on Jan Ullrich? Changing nationalities and retiring didn’t really end the scrutiny of his activities.

Lingering in the background of all this doping news is a thought I hadn’t been willing to articulate until now. The French are the only nation of cyclists incapable of producing a rider able to stand on the podium of their national tour. I’ve come to the conclusion that French cycling (ranked 14th among nations) sucks because they—more than any other cycling superpower—really took to heart the whole no doping thing. Remember, we haven’t seen a Frenchman on the podium of the Tour since the Festina Affair.

Image: John Pierce, Photosport International

Friday Group Ride #38

In Italian bike racing, Angelo Zomegnan is an important, powerful and sometimes sensitive person. The former Gazzetta dello Sport writer is now race director for the Giro d’ Italia, Milan-San Remo, Tirreno Adriatico and the Giro di Lombardia, all owned and organized by RCS Sport. You will recall that, having been notified that Lance Armstrong’s RadioShack team would not be attending the Giro, choosing the Tour of California instead, Zomegnan chose not to invite the Shack to Tirreno Adriatico either.

Apparently, there was a subsequent agreement, made after Armstrong called Zomegnan directly, to allow Radio Shack to ride in the Giro di Lombardia. In fact, according to the Shack, a contract of some sort was signed guaranteeing them an invitation. Then, Zomegnan decided not to invite the American team after all, and now they have filed a suit in the Court of Arbitration for Sport (CAS) seeking to be admitted to the last big Italian race of the season.

It has been alleged that Zomegnan’s pique with the Shack began when Armstrong did not appear for Milan-San Remo, as expected. Then, when Armstrong’s team opted out of the Giro, the Italian director wrote the squad off entirely. Whether or not this is the case, and remember that Vuelta a España director Javier Guillén also chose not to invite RadioShack to his race this year, is only conjecture, until Zomegnan steps forward and confirms it.

Shack rider Janez Brajkovic finished second at Lombardia in 2008, so RadioShack believes it deserves to be at the race start. Armstrong himself never planned to be at Lombardia, but Levi Leipheimer had the race on his schedule, so two riders with legitimate chances for the overall win suggests the team was taking it seriously.

This week’s Group Ride asks the question: What should have happened here? Should Zomegnan have invited the Shacks? Or has RadioShack peed in the proverbial pool? Has their decision not to race the Giro given European race organizers the reason they needed to cross the team off their lists? Is it about Armstrong personally? Or is it about the way the team has conducted themselves?

Image: John Pierce, Photosport International

The Other Shoe

The other shoe has finally dropped. The Court of Arbitration for Sport (CAS) has, finally, upheld Alejandro Valverde’s Italian suspension, imposed by the Italian Olympic Committee (CONI), finding that, not only does CONI have jurisdiction to impose the ban on the Spanish rider for races taking place in Italy, but further, that the evidence used by CONI to ban Valverde, may well be enough to expand the ban worldwide. The origin of the ban is a connection made between a bag of blood seized by Spanish police as part of the Operación Puerto investigation and a sample given for an Italian race, confirming, according to CONI, that Valverde participated in the doping program run by Dr. Eufemiano Fuentes AND that traces of EPO could be connected to Valverde’s DNA.

This decision alters the pro cycling landscape in a number of curious ways. First, it calls into question Valverde’s results from 2006, and the beginning of the Operación Puero scandal, up to his second place finish in the just completed Paris-Nice race. If, and this is a great big if, the UCI chooses to vacate Valverde’s results, then Samuel Sanchez suddenly becomes the winner of the 2009 Vuelta a España and Ivan Basso, himself a Puerto alum, climbs up onto the podium. Should the UCI back out all those results, the peloton will be full of new winners.

Beyond the rider’s individual results, the CAS decision demonstrates several things: First, the wheels of justice turn very, very, very, very slowly in cycling. We are years from the Puerto revelations, and though this process was slowed considerably by complications with the Spanish justice system, the fact remains that the national organizations overseeing the anti-doping efforts in Europe are NOT all together on procedures and protocols.

Second, it shouldn’t escape our notice that the Spanish police were actually the instigators of this entire episode, raiding Fuentes’ lab on a pretext not related to blood doping, which was not illegal in Spain at the time. Alejandro Valverde has never tested positive for banned substances in an in-competition screening. If it’s true that the Caisse d’Epargne rider made a practice of doping, then the testing the UCI is doing has not been effective in catching him, despite a string of wins that saw him end 2009 as the top-ranked pro rider.

Third, Caisse d’Epargne has already planned to end their sponsorship of the cycling team at the end of the 2010 season. If it’s most salable asset is banned from competition for two years, finding a new sponsor for a team that contains a wealth of Spanish cycling talent might be even more difficult. in light of recent sponsorship withdrawals by entities like Saxo Bank and Milram (though this is still up in the air) Valverde’s ongoing troubles signal yet another major blow against the sport in public perception.

Insiders will tell you that cycling is the most transparent sport, due to the high level of testing and prosecution of doped athletes. Outsiders will see just another big name rider convicted of cheating.

Now that CAS has exhausted Valverde’s appeals, we can look forward to the slowly unfolding drama of the UCI moving to expand the Italian ban to worldwide competition with the rider rushing around Europe trying to squeeze in as many races as possible before the hammer falls.

The Elephant II

Last September I wrote The Elephant, an analysis cum-indictment of Alejandro Valverde, his role in Operación Puerto and the doping shadow hanging over the pro peloton. Since that time, Valverde has won the Vuelta a España. Then, and perhaps still, Valverde represented the modern face of doping controversy, arguably the top rider in the world, at least by UCI ranking, with the strongest circumstantial link to serious foul play. His persistence, both in protesting his innocence and winning big races, seemed to me like the single biggest threat to cycling’s future.

Six months on, my perspective has shifted.

And what caused that shift? Improbably, it was the issue, in France, of an arrest warrant for Floyd Landis on the grounds that the American rider had hacked into the computer system of the French lab that produced his doping positive in 2006 in order to steal documents pertaining to his case. The very notion of the Metallica-quoting, former Mennonite engaging in any sort of international computer skullduggery so amused me that I resolved to read his book, Positively False: the Real Story of How I Won the Tour de France, a tome I had, up to this point, disregarded as superfluous to my understanding of how the cycling world works.

Landis’ book isn’t great. It sort of wanders all over the place, basically outlining what a naive, straight shooter its protagonist is and then lambasting the process of appealing a doping ban and indicting the system that convicted him more than the science, though there’s a bit of that too. I’ll save you the blow-by-blow of my reading the book, then turning to the internet and hundreds of additional pages of independent legal analysis as well as USADA memos, etc. as I stopped thinking about Landis mostly and instead sought to understand more fully how the anti-doping effort actually works.

And what I learned is that it’s complicated.

I thought it was complicated before, but mainly from an administrative standpoint. What I discovered is that testing, sanctioning and prosecuting dopers is a Kafka-esque legal undertaking wed to a scientific process that struggles for accuracy, repeatability and consistency from race to race, country to country and year to year. I began, if I’m honest, with a desire to believe that Floyd Landis didn’t cheat, a desire born of liking the public image of the rider more than anything concrete, and I ended with a deep ambivalence about Landis and subsequently my prize elephant, Valverde.

I realized that I had been applying a double standard.

I loved Landis’ performance in the 2006 Tour, the way he seemed to be assuming the mantle of American cycling leadership from a retired Lance Armstrong, his folksiness, and that amazing comeback on Stage 17, the performance that ultimately led to his doping positive and being stripped of the Tour de France victory.

I didn’t like Valverde. Viewed through the prism of the Puerto investigation, I convicted him of cheating, based on the circumstantial evidence available through the press, and then further indicted him for his flamboyant denials and audacity in continuing to compete in the biggest races at the highest level. In my mind, I was watching a cheat who suffered no consequences. He rubbed our noses in it. He imperiled our sport for his own selfish interests.

This is, of course, complete prejudice.

I don’t know Floyd Landis, and I don’t know if he cheated. I’ve heard awfully compelling arguments that he did, and equally strong reasoning to suggest he didn’t. I don’t know Alejandro Valverde, and I don’t know if he cheated either. Maybe yes. Maybe no.

By continuing to ride, and by the UCI and now CAS (the Court of Arbitration for Sport) taking so long to resolve his case, Valverde has remained the elephant in the peloton. But maybe what that elephant points out is not that doping is alive and well, but rather that the UCI’s system for detecting and prosecuting doping cases is nowhere near sufficient to the task. Valverde goes on winning, a path not available to Landis, and by doing so he proves one of two things, possibly both, that he can win races without dope or, in the event he was and is doping, that the tests don’t work nearly well enough.

Today, the Vuelta a Murcia rolls out of its start in Spain. That race’s director, Paco Guzman, barred Italian teams from entering his race to protest, he said, the Italian’s ban on Valverde, who is from Murcia. Ironically, Valverde and his team, Caisse d’Epargne aren’t racing Murcia either, due to a mixup over payments. At time of writing, UCI chief Pat McQuaid had become involved, threatening Guzman with UCI sanction and demanding an apology. It’s an ugly mess.

I see now that cycling’s politics don’t admit of easy resolutions for what, to most fans, seem like straightforward questions. Did a rider dope? Did he not? Are the races clean? Is the process fair? Are the rules applied equally across the sport?

Last September I wrote that Alejandro Valverde was the elephant, but now I see that no one rider can own that distinction. In fact, now that we’ve recognized the doping and the problems it cause, what remains is the UCI’s ability, or lack thereof, to clean things up, to give us a clean competition where we trust the participants, the administrators and the results. This is the elephant who casts its enormous, gray shadow over the races, the sponsorships, the legends and the rising stars. The dope lingers because we don’t know how to stop it. The UCI is as confused as the riders are. And I, as a fan, have to find a way to reserve judgement, for now, and possibly forever.

Image: John Pierce, Photosport International