Call the CAS

Wednesday, 16 February 2011

fixed that for you

Fixed that for you

The news that the Spanish federation cleared Contador in the absence of proof is a confirmation that the existing rules were cast aside. The principle of “strict liability” has been abandoned, instead the RFEC says:

“The minimal amount detected could not presume an improvement in sporting performance…
…This brings us to the conclusion that with a high degree of probability the positive detected was a consequence of the consumption of contaminated meat, an act which cannot be assumed or considered as negligent conduct.”

So there we have it. First the rule that any quantity of Clebuterol is an offence and second the rogue steak hypothesis is accepted. As I said yesterday, accidental ingestion is a possibility but why the insistence on steak, as opposed to a spiked drink or contaminated milk?

Countdown
The UCI has said it is waiting for the relevant documents and has 30 days upon receipt to act. WADA has a further three weeks on top of the UCI, meaning 51 days or early April. Any hearing would then have to be booked and then heard, a process than typically takes 2-4 months. But it could take longer, the investigation into last July has lasted far longer than usual as the UCI wanted to take particular care. Similarly the case of Franco Pellizzotti and his bio passport data is taking a long time as WADA and the UCI want to put their best case.

Test case
The RFEC’s decision overthrows the fundamental rules that underpin the anti-doping rules. WADA won’t stand for this and the questions raised by the RFEC have to be tested in court. We cannot say Contador was doping or not but I think it’s fair to say this case is going straight to an appeal with the CAS. It’s time to make a provisional booking. I suspect the UCI has the CAS on speed-dial.

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{ 12 comments }

Touriste-Routier February 16, 2011 at 3:06 pm

In addition to being a test case as you have cited, it will be interesting to see whether any procedural mis-steps are brought into this potential CAS case (despite not being announced to the press as a reason for non-punishment), or whether contentions are made that certain sporting rules are in violation of or inconsistent with National (Spanish) Law. This later contention could open up a whole new set of loopholes.

Bud February 16, 2011 at 4:02 pm

Anybody leak the 35 page decision that the Spanish Fed sent to the UCI? Odd that the decison has not been released, unless I missed it.

The Inner Ring February 16, 2011 at 4:14 pm

T-R: yes, they could be a potential problem. But riders agree to the CAS rules and sport has a special status under European Union laws, where it is effectively exempt.

Bud: only the extracts mentioned in link at the start of the piece.

Roxanne February 16, 2011 at 4:17 pm

The UCI has an opportunity to rescue its reputation – but right now, it looks like Floyd Landis was right, and there are two sets of standards in place: A lenient look-the-other-way standard for top performers, and a draconian zero-tolerance standard for the rest of the riders.

Touriste-Routier February 16, 2011 at 4:48 pm

In the EU, I am not clear if one waives their rights or jurisdiction, if it is entirely/universally enforceable. Even CAS decisions are not always final; appeals can be made to the Swiss Courts, not that they have to accept the cases. Even with special status, the individual countries may or may not accept certain rulings (Valverde), so the maze can get more confusing. in Cycling we’ve seen that rider contracts can be at odds with employment law. The UCI dictates contract language, which may or may not be enforced by the rider’s country, the EU, or the UCI. But that is another subject…

ColoradoGoat February 16, 2011 at 5:30 pm

Seems to me the problem with Landis is he only won 1 Tour, and was the first rider busted while still riding. UCI took draconian view at that point in time, but after all was said and done, maybe regretted the PR hit to the sport. So along came Contador, and they have spent the entire time ever since vacillating between trying to get out of punishing him or trying to outsource the punishment to RFEC (once the PR hit occurred anyways).

MikeyMikeyMotorcycle February 16, 2011 at 5:54 pm

Some reports are starting to say that a decision by CAS might not even get done by the time the TdF starts. How sad. You know AC’s side will try and drag this out for as long as possible.

I hope RCS (Giro) and TdF (ASO) step up and do the right thing by telling Contador not to show up or telling SBS not to show up.

The Inner Ring February 16, 2011 at 6:06 pm

Roxanne: yes, let’s hope this gets resolved quickly.

T-R: I’m currently exploring the issue of sport and law in Europe, there are some special exemptions from law under EU rules. More to come if it’s relevant.

ColoradoGoat: yes, there’s a difference between nationality and the outcome of a hearing. But Landis never made it easy for himself. Maybe he’ll sleep better for this though.

MikeyMikeyMotorcycle: I know, this could go on and on. But the pressure to resolve this is huge. ASO and RCS won’t just sit back to find out what’s going on, they literally cannot afford to be so passive.

Also for the record, the illustration is not meant to be anti-Spanish. It’s just some humour at the questionable practices employed by one or two organisations in Spain, not the entire country ok.

Nico Gartmann February 16, 2011 at 6:57 pm

One federation cannot stop the agreement because it does not like it. Spain cannot be the exception, it has many famous riders and is very important. I hope a fast answer is coming.

TdF Lanterne Rouge February 16, 2011 at 8:15 pm
The Inner Ring February 16, 2011 at 8:32 pm

Nico: yes, this is very important. It’s not like he’s an unknown amateur.

Tdf LR: thanks.

Miso Kuropka February 16, 2011 at 11:54 pm

If im reading the 296 correctlly, it applies only to the sentencing/ punisment in case one is found guilty for doping (based on the word of ineligibility). Considering that Contador was acquitted (pronounced innocent), I would assume that there needs to be at least one more rule dealing with Contador case, i.e. if someone is caught with Clenbuterol in his body he is guilty, but he can compete if he proves that this was not caused by his fault or negligence (provided that he is not Spanish as there are all innocent by definition). Sorry for being so ignorant (unwilling to read all the governing law), but I am wondering: is there anything else there that applies to Contador case? If not, I would assume that regardless whether Contador is able to compete, he should not be considered 2011 TDF winner (as he broke the anti-doping rules under which anybody testing positive for Clenbuterol is found guilty). How come nobody asked this question yet?

Secondly, reading the comments above I understand that contributors are confused over the jurisdiction over doping cases. I am no legal expert, but applying the common sense, I would assume that doping and punishment for doping is a matter of private (contractual) law as opposed to public (criminal) law. In other words, cycling community (regardless how obscure it appears) agreed to follow certain set of rules (contracts) including the punishment for those who breach them (ie dope). The public authorities do not interfere apart for enforcement of the contractual obligations (like they would in any other private matter like when one needs to pay when he buys a house). Yes, in certain countries dopers are prosecuted by public authorities for breaching criminal law. But this is not the Contador case. Given this, at this stage it is irrelevant whether EU has any jurisdiction over Contador and it should remain the matter of self governance.

As of today, I am calling Contador EL DOPELERO!

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