It took 585 days (and will rumble on for at least another 30) but finally the outcome of the 2010 Tour de France has been settled: CAS upheld an appeal by the UCI and WADA, banning Alberto Contador for two years.
Original runner-up Andy Schleck will take the crown after, stripping the Spaniard of his third Tour title and subsequent UCI wins.
If you read the 96-page report that the Court of Arbitration for Sport filed on the case, it seems like it was based on a rejection of Contador’s contaminated meat defence – even though CAS stressed that it could not be proven that he did or did not dope.
The whole sorry affair certainly underlines the problem with strict liability cases, in which a person is held legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability.
Unless the accused can prove his innocence he is guilty even if guilt has not been established – a total reversal of the normal principle of innocent until proven guilty.
So while Bjarne Riis, Contador’s directeur sportif at Saxo Bank, can stress that the report finds the presence of clenbuterol as “unlikely to have been a case of conscious cheating”, this is neither here nor there at this late stage of proceedings.
Conversely, the ruling still didn’t stop the World Anti-Doping Association president John Fahey letting off some steam and telling Reuters that the outcome of the appeal proved that “Contador is a doping cheat, full stop.”
How Fahey came to this conclusion – and it certainly wasn’t through the CAS report – is unknown. Maybe he knows something we don’t?
Fahey added that Contador may have got off with the one-year ban initially proposed by the Spanish Cycling Federation – but once the RFEC exonerated the rider and a senior Spanish politician stressed the rider’s innocence in a statement, “WADA had no choice but to appeal”.
So, in hindsight, Contador could already have this all behind him instead of being forced to sit on the sidelines for this year’s Tour and the Olympics. It could also be argued, though, that (were he guilty of doping) a two-year retrospective ban is not such a bad outcome for the Spaniard, who should make his comeback in the Vuelta a Espana in just over six months.
While the likes of Ivan Basso and Alejandro Valverde were forced out of competitive racing for almost two years for merely being implicated in Operacion Puerto, Contador has been able to ride on in the peloton. Granted, his results have now been annulled – but it sure beats training on your own for the best part of two seasons.
In a press conference following the outcome, Contador underlined the “injustice” of the situation, saying he had “done everything possible to show that I was innocent”.
But the CAS file shows that Contador just didn’t do enough to prove his innocence. In fact, he fell short by putting all his eggs in the meat basket, so to speak.
CAS made it clear that they would have accepted a contaminated food supplement as mitigation for the tiny traces of clenbuterol in Contador’s bloodstream – but the Spaniard’s legal team never went down this road, instead insisting upon contaminated meat (which became a red herring).
Put simply, the appeal was less about Contador’s innocence rather than whether or not he could provide a decent explanation that could mitigate his penalty. Because he couldn’t – and strict liability requires the athlete to show they have no responsibility for a banned substance within the blood stream – he took the rap.
But a two-year ban and potential $7.4m in fines, loss of earnings and legal fees seems in the eyes of many incredibly disproportionate for someone whose blood contained minuscule traces of clenbuterol but no evidence of intentional hard doping (the report dismissed the theory of a blood transfusion as “equally unlikely” as that of the rotten meat).
“I feel it is particularly hard on me because the amount of clenbuterol was so small it would never change my performance,” Contador stressed again this week.
Indeed, the 50 picograms per millilitre detected were 400 times below the minimum standards of detection capability required by WADA – and yet here we have the head of that agency, Fahey, seemingly rubbing his hands in glee at the outcome.
The severity of Contador’s punishment baffles Joe Papp, a former American rider who himself was banned for two years by WADA in 2006 for testosterone. Papp subsequently admitted to using a range of performance enhancing drugs during his career, including EPO, anabolic steroids and amphetamines.
“What natural right does WADA have to take away this man’s living, to destroy his career, to punish him in the same manner as they would have punished me, when they couldn’t catch him doing anything remotely as severe as what I did?” said Papp, currently under house arrest for his role in supplying PEDs to fellow athletes.
So, what next? Contador has 30 days to lodge an appeal in the Swiss federal court – but he’s damned if he does, damned if he doesn’t.
Cutting his losses and focusing on making a winning return in the Vuelta will only give credence to Fahey’s line that Contador is a “doping cheat”.
But lodging a final appeal and trying to save his name may perhaps do the Spaniard’s already-plummeting reputation more harm than good.
With the UCI ready to impose a fine of $2.95m – not to mention demand 70% of his annual $6m contract at Saxo Bank – the thought of adding more legal fees to the 18 months already accrued must be daunting.
With so much money at stake, you would think that WADA will now be pressured into changing the strict liability principle. Some critics already believe that WADA only has an interest in pursuing athletes in situations like Contador’s because they have to justify their own existence and budget.
As for the wider picture, there are many who claim the belated (not to mention unexpected) decision to come down so hard on Contador is good for the sport. But even UCI president Pat McQuaid denied this in a short statement following the CAS ruling, saying it was “a sad day for our sport” and that “there are no winners when it comes to doping”.
Indeed, the UCI have got the worst possible result: the peloton’s best and most high-profile rider dragged through the mud and banned, two years of results up in the air, a de facto 2010 champion in Schleck who refuses to take the crown, and more and more people who now simply dismiss cycling as a doping sideshow.
To be perfectly frank, the UCI shot themselves in the foot when they so brazenly made the case public in the first place.
As controversial as it may be, is there not a case for suggesting that the UCI should have covered up Contador’s clenbuterol positive – knowing that it would only damage the rider personally and the sport generally?
In any other sport, this would have not come to light. Perhaps brushing it under the carpet would have been better for everyone.