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.
sittingbison
Guest
Hi james, hopefully I have this explanation correct %). its using very small doses of a variety of drugs more frequently than One Large Dose, usually in competition rather than the heavy training period. It makes it extremely hard to detect, easier for the body to flush it all out, but you still get the immediate benefit. As has been said several times before, the miniscule size of the clenbuterol is irrelevant, it is a completely manufactured drug, the issue is it point to something else, in ACs instance he has in all probability transfused some blood that had traces of clen left over from a previous dose during training that was not totally flushed when the blood was stored.
Jimbo
Guest
Yes, but again, what is the alternative? As I said, testing positive is considered prima facie evidence of doping, so no, it is not a precedent, as being found with such substances has always been sufficient to be found guilty of doping - especially in cases of drugs such as clenbuterol which are not produced by the body - there is no acceptable threshold. As for Cancellara's claims, how many athletes have genuinely tested positive inadvertantly? I recall reading about some athletes in Mexico who tested positive to Clenbuterol due to contaminated supplements, but were let off, as they could trace the supplements and prove they were tainted. Contador, on the other hand, if you read the case, specifically tried to prove that he hadn't consumed contaminated substances - his defence team traced the manufacturers of all his supplements and showed that none stored banned substances at their manufacturing facilities, that they were independently monitored, and that none had ever been associated with doping cases - not absolute proof, no, but pretty solid one would think. As for the steak, as detailed in the investigation, the chances were, that it was a Spanish steak, and the chances of that having clenbuterol in it were infinitesimally small, and even more so that it would have had a sufficient amount to cause the positive blood test. Additionally, it detailed that the team employee bought a 3.2kg steak, which I presume was shared with team mates. If so (and this applies for the supplement scenario as well) how come none of them tested positive?
Felix Lowe
Expert
Of course, I agree with everything you're saying. In theory it makes perfect sense. He was caught with doping substances in his blood, he must pay the price. But could you not also turn your argument on its head and say it sets a dangerous precedent punishing someone so severely for such minute amounts of illicit substances - amounts which could have entered the blood stream through other means than conscious cheating? Fabian Cancellara certainly thinks so. A couple of days ago, in Qatar, he said: “Your whole life can fall apart after one test. This is the fear we have as an athlete and it’s real. I believe there is always a possibility that you can test positive for things that you don’t know about. You can go to China and eat some meat and then you come back and ‘boom’. It scares me, for sure. " Full article here: http://www.cyclingnews.com/news/cancellara-big-question-marks-hang-over-contador-case Contador's ban and his likely huge fines are unprecedented in their severity for someone who had not actually been technically found guilty of intentionally doping. That's all I'm saying.
jameswm
Guest
Yes that part of the CAS report is confusing. However doping seems the most likely explanation. Certainly the containated meat excuse was lame, so he was never going to get off.
Jimbo
Guest
So what do you suggest happens Felix? Let him off? That would set a horrible precedent and destroy whatever credibility cycling has as a sport. Basically, such a decision would mean that in the future, any athlete who tested positive would be able to get off so long as WADA couldn't prove beyond a reasonable doubt that they had deliberately administered the offending substance - because such a precedent would have been set in this case. Fact of the matter is, once you test positive, you have to prove how the substance got there - a positive test is considered prima facie evidence that a doping offence has been committed, unless you can provide a watertight excuse as to how the offending substance got there. Contador's excuse was unlikely in the extreme, and hence there was no legal basis by which he could not have been suspended.
Felix Lowe
Expert
Did you not read the article or any of my other comments above? The CAS report says the chances of a blood transfusion were as likely (or unlikely) as that of ingesting contaminated meat. If you have no time for the latter, then you can't give credence to the former... Anyway, I reiterate: what do we know? Nothing. And we'll probably never know the truth. It's all just speculation and we're just spectators. Thanks, F.
jameswm
Guest
If he was tested rearlier, then he didn't have any earlier because he hadn't had the blood transfusion yet, the one that had the small traces of clenbuterol. Why the levels of plastic in his blood? How do you think it got there? You buy the contaminated meat theory? Or it was a contaminated supplement? Incidental from what? It wasn't the meat, so what then? And if something else, why didn't Contador's team argue that? I can't believe Contador's claims get any credence at all.
NJPTOWER
Guest
It is about strict liability. You run into the back of a car that stops for no reason, you are at fault, no matter what. Same applies here, if you have drugs in your body, it is your fault, harsh but fair
Felix Lowe
Expert
But the CAS report came to the conclusion that the autologous blood transfusion possibility was as flawed (your words) as the tainted meat argument. They said that there was no evidence to suggest he had or hadn't doped. I hear what you say about Bruyneel and Riis - but that's a topic for another day. We'd go round in circles if we kept on dragging up the past.
Felix Lowe
Expert
But he was tested earlier and didn't have any... The amount (which would have gone undetected in most laboratories) points more at the incidental rather than the intentional...
jameswm
Guest
sittingbison what is micro-doping?
jameswm
Guest
How is the punishment disproportionately hefty? I thought it was a 2 year minimum. How was he not found guilty of doping? He had illegal substances in his blood and couldn't explain it. That's what I call doping. Just because a small amount was found in his blood then doesn't mean he didn't have a larger amount earlier.
Felix Lowe
Expert
Sure, but a referee in a football game cannot send a player off for an innocuous-looking foul simply because the same player escaped sanction for a questionable challenge during a game a few seasons ago... Each case must be judged on its own merits - and my point here is that the punishment is disproportionately hefty for someone who wasn't actually found guilty of doping. The report says the chances of a blood transfusion were as unlikely as that of ingesting contaminated meat. His blood passport doesn't show any discrepancies, the amount of clenbuterol would have had no performance enhancing qualities... Something just doesn't add up. Don't get me wrong - I'm not saying Contador has a clean past, nor am I saying he's innocent (how could I know?), simply that there's something dubious about the whole 2010 episode. Look, anything that gets written on the subject is mere speculation - and even after reading the 96-page report, none of us is close to knowing the actual truth. We're all using our own convictions, cynicism, faith or suspicions to form an opinion - and until there's a full-on admission or a thorough explanation, we'll never know what really happened.
paul brennan
Guest
I think Fahey could be on something coming out with such a statement. The whole things reeks of mismanagement lies and wada egos. A fine sport in a embarrassing mess.
sittingbison
Guest
And my final observation on this article is Operacion Peurto, and that it was suddenly closed by the authorities when it was discovered that not only were many Spanish soccer stars participating (including mostly all of Real Madrid), but also one Alberto Contador. And in what were they participating? What was Peurto? Systematic micro-doping with a veritable cocktail of substances followed by autologous blood transfusion, and it all came about because of the discovery of their stored bags of blood all labelled. However this was not before Ulrich, Basso and others were also implicated, investigated by their national bodies and expelled. Basso was found guilty because his blood bags were labelled with his dogs name. But what of the ones labelled AC? Case closed!
Jimbo
Guest
Exactly right. Cycling has a rather sordid history of doping, and it needs to be seen to be taking the fight to dopers where they are found. It is hard enough to detect dopers as it is (witness Victor Conte of BALCO claiming that beating testers was like 'taking candy from a baby' - indeed, Marion Jones was found out via criminal investigation, not testing). Cock and bull excuses such as that peddled (excuse the pun) by Contador should be laughed out of court. If taking a stand means ruling out one of the best cyclists in the world, then so be it. The author of this article also ignores the irregularities in his blood parameters, and high levels of plasticisers found in his blood, as documented in the case notes. You are also absolutely correct to note that his ban is in effect very short - he will come back close in close to competitive shape, as he has not been out of competition for very long, which in itself is a disgrace. And the suggestion that it would be better off brushed under the carpet is too absurd for words. Cycling has enough of a legitimacy problem as it is; once the positive test result was made public, whatever was left of its credibility would be out the window if the UCI didn't take action. This is not body building, after all.
jameswm
Guest
So Contador said it was from contaminated meat, but that substance is not used in meat production in the country where he says he ate the meat? And he can't understand why he was banned? How gullible do he and his (discredited) team director think the rest of us are? I can't believe the slant of this article either, suggesting it would have been better for everyone if it got swept under the carpet. He cheated, he got caught. Simple. He did the crime, so now do the time. I think he got off incredibly lightly - a 2-year ban, but he's been cycling competitively for 18 months of it.
H
Guest
I was replying to point number 2 of the above poster, who suggested the dope test caught trace amounts of clen because it was leaving Contador's system at the time. While the author could have simply forgotten to imply that this was part of the process you described, I can only reply to what's actually been said. Let's deal with one speculation at a time, eh?
Terry
Guest
I like Contador-think he's one of the best cyclists and I love to watch him race.I was looking forward to the TDF this year. Fact is there was clenbuterol in his system so why should he be treated any differently than the Chinese cyclist who was immediately banned for 2 years for a similar amount. It's not about whether the amount would have improved his performance or not. Also recall that the Spanish posse were prepared to ban him (1 year) before the 'political interference' incident and subsequently and hastily reversed themselves over the weekend. As well, in this almost unbearably lengthy process at least one of the delays was at the request of Contador's lawyers. I'm very tired of hearing people like Landis convicted of doping, suddenly become almost evangelical in their anti-doping stance. Not to mention in Floyd's case fleecing people of a million dollars (???can't recall the amount) for his defense. How much of this has been paid back. Also Joe P. I'm sure he is a nice fellow but again one convicted as a drug supplier to fellow cyclists. Please, must we listen to his view on the 'Contador case? Certainly he has a right to his opinion but every time these views are published it incites and prolongs the controversy'. No doubt it sells many magazines and newspapers - but what about the SPORT. Remember if you kill it through bad publicity then you will have shot yourselves in the foot.
sittingbison
Guest
H it is generally accepted that what in all likelihood occurred was he micro doped prior to the race, stored blood during training, and transfused just before the mountain stage where he battled Schleck through the fog. His problem was the stored blood still had traces of clenbuterol from the microdoping. This entire issue has nothing to do with clenbuterol per se or the efficacy of testing.