Contador’s Rashomon appeal

Tuesday, 15 November 2011


I keep wanting to do an update on the Contador case ahead of the appeal hearing but the date keeps changing. Now the verdict is expected in January says the Court of Arbitration for Sport:

The hearing will take place in Lausanne from 21 November 2011 at 12:00 to 24 November 2011… …The CAS will issue its decision with reasons as soon as possible but probably not sooner than several weeks following the completion of the hearing. The hearing in this matter was supposed to take place in June 2011 but, at the request of all parties, was postponed to August 2011 and finally to November 2011.

We’re now at the stage where every party in the case has played for time. The UCI sat on the positive test and filed its appeal at the last possible moment. WADA also waited. The Spanish federation, the RFEC, went further and took longer than the rules stipulate to process the case. Contador’s defence team has asked for a postponement of the appeal hearing. And now the CAS will sit soon but it is said there will be no verdict until January 2012.

I welcome a thorough process but the longer things go on the more we see how complex this case is. I wonder if we’ll ever get to the truth of if the appeal will weigh up likely stories and side with the most probable outcome?

We’re all impatient for a resolution, Tour de France boss Christian Prudhomme said “One can only regret the time lag between the sports and media, and that of justice.” In wider context, perhaps this is normal? If the UCI suppressed the news of the original positive tests it wasn’t done for fun, it was because of the gravity of the case and other delays have a similar explanation. There’s a lot to look at. Justice can’t be rushed. Look at any case going through the courts in, say, Spain, Switzerland or France and it can take years to review matters and come to a verdict. The newspapers in France often feature cases that take a decade to resolve, for example the crash of the Concorde plane or the explosion of a chemicals plant. A sporting event is trivial compared to these matters.

There’s also the sheer complication of the case and so much riding on the case on all sides, whichever way the verdict goes there will be some sort of fallout, whether for Contador and Saxobank or WADA and the UCI.

Yet at first glance it looked simple. The rules rely on the principle of strict liability and so any positive test equates to a ban and the rider in question can only reduce the ban by proving “to the comfortable satisfaction” that the banned substance, in this case clenbuterol, was ingested by accident. Not just possible but the most probable outcome.

But the appeal is going to be more broad-based. Joe Lindsey’s Boulder Report sets out the defence team which will include an expert in polygraph testing, also known as a lie detector. I hope this is kept to a minimum as it is largely bogus science, a moment of pointless courtroom theatre. Instead the real interest for me comes in the use of bio-statisticians. This is the field of Bayesian probability and as Lindsey points out, far from strict liability. Indeed the matter could be highly subjective with both sides able to present expert witnesses to make compelling arguments.

It reminds me of the Japanese film Rashomon (羅生門) directed by Kurosawa. Based on two novels the film recounts the death of a samurai from the perspective of several characters. The samurai himself recounts his death via a psychic medium (a step up from a polygraph?). Each scenario presents plausible accounts and motivations and after hearing the different accounts, the characters are left worried and confused. The truth is an elusive matter.

Summary
Alberto Contador’s CAS appeal gets further delays as the case proves more and more complex. Will we ever discover the truth? The CAS hearings will see four sides (Contador, RFEC, UCI, WADA) put their views but it could come down to probabilities and lawyers arguing over the meaning of “comfortable satisfaction”. Perhaps the appeal is about who has the best story rather than an investigation of the truth?

TdF Lanterne Rouge November 15, 2011 at 1:35 pm

In the field of probability, I’m keeping in mind the probability of Contador eating the only steak in all of Spain that presumably would have tested positive for clenbuterol. Vanishingly small.

Davido November 15, 2011 at 2:14 pm

Hmmmm … Jeannie Longo, one of the true icons of cycling, was accuesd in September of failing to report her whereabouts and missing drug tests. The French Federation will rule next week on her case. Seems the wheels of justice CAN move swiftly after all.

Belivelo November 15, 2011 at 3:15 pm

I think the delays have been so that when they let him off the public will be so tired of the whole charade that there will be no uproar!

TotheBillyoh November 15, 2011 at 3:37 pm

“Justice delayed is justice denied” is a legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. – Wikipedia

The fan is being denied justice.

Shawn November 15, 2011 at 3:43 pm

In Rashomon, each witness provides a different account of the events from his/her own perspective. However, in the Contador case, are the numbers really open to such a perspectival slant? The small traces are utterly inconsistent with taking Clenbuterol directly during the tour, leaving contaminated meat or blood transfusion as the two remaining causes. IF the rest of his blood values over the three day span in which he was tested (i.e. the day before, after and of his positive) show NO signs of blood manipulation, then Contador has a strong case regardless of perpspective. Granted that remains an ‘if’ from our outsider perspective; but, if the science is properly understood by those who report the findings to the public, then our confidence regarding the findings shouldn’t come down to personal feelings or perspectival interpretation.

Chris November 15, 2011 at 3:46 pm

Agree with Lanterne Rouge. It’s a story whereby his eating a compromised meal does not affect any of his teammates, so they wouldn’t test positive. You can imagine them coming up with the story, it’s so transparent “Tainted food? Why didn’t anyone else test positive? … We’ll say someone brought it in, especially for me. … What? What about travel documentation, like plane tickets proving he came in with a fresh steak that day? … Um, he drove it here in his car…” etc.
It is the equivalent of his dog eating his homework. Effing ridiculous schoolboy excuse. And we’re likely to watch the grinning schoolboy just get away with it, too, because his parents (Spanish federation) are on his side. Spaniards’ approach to this sort of thing makes me sick.

mdfrank November 15, 2011 at 4:59 pm

@ Chris, no one else tested positive because they weren’t tested. Very few riders are tested on a daily basis. They did produce the receipt from the butcher shop in Spain, and yes it did travel by car across the border. These facts have been out there for over a year, don’t tell me your cat ate your computer mouse – again.

MT Dave November 15, 2011 at 5:49 pm

Toshiro Mifune……… Big Ringing it with a sword.

Q November 15, 2011 at 5:49 pm

I agree that it can take time to assure that justice is properly served, but in the context of sport, there ought to be a statute of limitations. It has now been sufficiently long that I care about this a lot less than I did when the news first broke, and I think Contador deserves some certainty about his future. It reminds me of the cases where the NCAA discovers that some college football or basketball team violated some rules and goes back and retroactively negates the team’s wins. The whole exercise feels a bit silly because you can’t unplay the games. Ultimately sport is entertainment, and you can’t unentertain the fans by reversing the outcome of contests that happened years ago. The whole point of enforcing the rules is ensuring that future competitions are entertaining because fans have confidence that the competition is fair. At this point, I am questioning whether banning Contador would have that effect, even if the CAS decides he is guilty.

Rik November 15, 2011 at 6:00 pm

I can see the arguments are big but the rules are simple: he tested positive so he is banned unless he proves the clembuterol came from a known source, with evidence presented. But the Spanish did not uphold this and we have the appeal. It should be a simple case but all sides are worried about the mistake so we have long time delays.

drfrot November 15, 2011 at 6:04 pm

If he’s found guilty, would a 2 year ban be dated retrospectively? I’d kind of assumed that was the main reason for the delaying tactics (i.e. regardless of the verdict, the actual out-of-competition time is laughably short).

cthulhu November 15, 2011 at 7:45 pm

I have to agree with TotheBillyoh.
In the end the fans are paying the bills for the cyclists. No interest, no sponsorship, no pay. That easy it is. And the fans’ attitude has changed in the last years. While I believe that some years ago the fans secretly accepted that doping was a part of cycling as long as they are not confronted with it, but now the fans really want clean sport. And this delaying tactics are a like a slap in their faces.
While some delays might have reason behind them and it takes time to get an overview of all the facts and all the accusations/defense facts right, many delays smell like cover up or tactic and favouritism. Look how fast it can the UCI goes public wit the case the rider is unliked by the UCI (and the public), example Ricco, or if he is just a nobody, Radioshack’s Chinese rider, and are sanctioned.
And if Contator should get banned it will be dated back to the day the positive got taken. That means he will be banned for maybe roughly half a year. He will probably also have to pay a fine and return some titles but that will still leave him with all his pay and price money from the last one and a half years, and even more valuable all the money from private sponsors, rendering the punishment ineffective.

Ettore Bombino November 15, 2011 at 8:36 pm

The only flaw with TdF Lanterne Rouge argument is not everyone in Spain has been tested or would be tested for contaminated meat. In addition it was weeks after the story was leaked by the press that a detective was put on the case to “attempt” to trace the Clenbuterol trail if any. The fact is that Spain as well as the EU imports tons of beef from Mexico as well as South America and even though the beef is serialized not every piece has a serial number on it so tracing to the slaughterhouse or source is based on a shipping receipt or receiver documentation. Here in California, US beef imported from Mexico is frequently rejected because of contaminants including low levels of pesticides. It so happens that my next door neighbor is a meat inspector for the Department of Agriculture and a riding partner.

TdF Lanterne Rouge November 15, 2011 at 8:43 pm

Ettore – yes, but of all the tests run on Spanish beef in the last, say, 5 years, what percentage has come up positive for clenbuterol?

Inrng has heard me rant about this before – even if the meat WAS contaminated (of which I am totally skeptical) I fault Contador and the Spanish authorities for not *immediately* raising a widespread general health alarm the moment the positive test was known, in order to prevent anyone else from being poisoned from the (supposedly) contaminated steaks. Organ meats from the same animal could have held enough clenbuterol for toxicity to occur in others, and neither Contador, UCI, RFEC, nor the Spanish health authorities did anything to prevent that. If the alibi is true, they all failed in their moral obligation to protect public health.

Janders November 15, 2011 at 9:06 pm

“Toshiro Mifune……… Big Ringing it with a sword.”

perhaps the best comment ever on this site.

Rooto November 15, 2011 at 11:25 pm

Q said : The whole point of enforcing the rules is ensuring that future competitions are entertaining because fans have confidence that the competition is fair. At this point, I am questioning whether banning Contador would have that effect, even if the CAS decides he is guilty.

Surely banning Contador (even for the last 6 months of the ban) sends out a very important “no one is too big to get banned” message. This may not have been true before, but it would be a slap in the face for all of us if it were confirmed that it’s still not true.

TotheBillyoh November 15, 2011 at 11:37 pm

Author: Janders
Comment: from MT Dave: “Toshiro Mifune……… Big Ringing it with a sword.”
perhaps the best comment ever on this site.

YES !!!!!!!!

(I also agree that once we fans were tolerant of doping and now we expect cleanness, as cthulhu wrote. I tire of having to defend the sport to family and friends – it is very damaged goods.)

Chris November 16, 2011 at 12:27 am

@mdfrank
Of course these ‘facts’ have been out for a year. The saga has been drawn out since last year’s tour. I’m not saying his flimsy excuses are new, just that they’re flimsy, and certainly not the most likely and simplest explanation.

DB November 16, 2011 at 4:20 am

The current adversial based systems i.e present the best argument, are not about finding the truth, just who has the best, most plausible argument, … or most expensive lawyers. If the truth comes out it is a very pleasant by-product, but not the aim. (cue Jack Nichoslon speach?)

Whilst better than many alternatives, it is desperatley flawed in situations like this where nobody seems to know what “happened” and black & white rules i.e pictograms of accuracy run into the real world, then lawyers and PR people get involved …

Net result: long term damage ie. confusion and disillusuionment with/on all sides, witness the difficulties in getting sponsors and general regard that many neutrals view cycling. The collateral damage from this form of warfare.

At the moment the McQuaid fiefdom presented as the UCI look like they are fozen in the headlights with no clear vision of where they want to go and deal with anything except enforce arcane irrelevant rules through a pea soup fog they call transparency that seem to just tick everyone off. Maybe that is their aim, if everyone is upset with them perhaps it is a form of consensus?

Keeping the hantastic sword metaphor going, lets hope CAS cuts Damoclese like through the ever growing knot of BS that is playing out here and credibilty to ALL parties can start to rebuild.

I am not holding my breath, … I just want to watch good cyclists racing great races…

Gpdomestique November 16, 2011 at 11:15 pm

I do not see how the case is becoming more complex as time goes on. The delays and current form by parties involved seems to indicate that we will not see justice served well, rather the more convenient verdict for the sport.
If this is the case then the jokes on them, as the damage to the sports reputation and governing bodies’ credibility has already occurred.
For the good of the sport, there needs to be a process that can deliver a verdict within a reasonable time frame.
Is it any wonder that with things like this going on, that the sport and teams are struggling for sponsors.

The Inner Ring November 16, 2011 at 11:21 pm

Gpdomestique: my point about complexity was that this is more than “rider x is positive = ban”, that the CAS appeals involve debating strict liabilities and the principles behind the WADA code.

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