The debate over Alberto Contador is far from finished. The WADA Code adopted by the UCI involves the concept of “strict liability”. In this case an athlete is responsible for what goes in their body and if a banned substance is discovered they face a sanction, normally a two year suspension.
It’s for the individual to present reasons to explain the positive test, if they think it came from contaminated supplements or illegal meat, the onus is on them to prove it. Now this is very harsh, the presumption of innocence is put aside. But strict liability is common across many fields, it is not curious to sports and anti-doping codes. Here’s Wikipedia:
A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable. Another example is a contractor hiring a demolition subcontractor that lacks proper insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs.
The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting.
Hopefully you get the picture. But let me drive the point home. In France the speed limit is 50km/h in residential areas. Now imagine you get a letter from the police informing you that car has been caught doing 55km/h, complete with the photo evidence from a speed camera. You could argue that you weren’t driving dangerously but the law puts the limit at 50km/h so you are going to have to pay the fine. Now maybe you didn’t know you were over the limit. You have to pay. Maybe your car was out of control. You have to pay. Maybe you weren’t in the car. You have to pay. And so on, the only way to escape the penalty is to prove you were not at fault, for example to prove that a friend had borrowed the car and get them to testify.
It’s the same deal with anti-doping rules. Just as breaking the speed limit by a tiny amount is banned, so is having a tiny amount of a banned substance. Unlike, say, testosterone, there is no tolerated quantity allowed for Clenbuterol. The presence of any Clenbuterol can aid performance so it doesn’t matter where it comes from, the rider is doped whether it is deliberate or accidental.
What the Spanish federation has done is to say “you didn’t have much Clenbuterol and it could have come from some beef”. It’s the equivalent of the police saying “you weren’t that much over the speed limit and maybe you weren’t driving”, a departure from the normal traffic rules. If a local magistrate tried that in France they’d get suspended.
Given all this WADA is going to appeal, just as someone escaping French motoring law would see the authorities appeal rather than a new precedent of jurisprudence case law.
The ruling from Spain looks very weak. The presence of Clenbuterol is incontrovertable and there’s no proof of where it came from. That’s a two year ban.
Tragically even if Contador is innocent my advice would be not to fight this unless the proof can be found. Tracing the source is his best hope but without this he looks stuck. It’s the equivalent of someone taking your car, getting flashed by a speed ticket and then returning the car : you have no alibi to state it wasn’t you, many a traffic cop would laugh, worse a magistrate might be inclined to make an example of you. Even if you are innocent, establish the proof might be an impossible task. The only certainty is is the lawyer’s invoice.
Spain vs. WADA?
Still, if he wants to go ahead Contador’s needs to overturn the WADA Code. He might be wealthy, he might have good lawyers but this is surely a task too far? His only hope would be to get the Spanish government behind him and take a big tilt at WADA. But I suspect that even one country can’t do that without upsetting the IOC and jeopardising the country’s access to international sport.