Confusion over Contador’s CAS case

Wednesday, 11 January 2012

The Court of Arbitration for Sport (CAS) has been hearing the double appeal brought by the UCI, cycling’s governing body and WADA, the World Anti-Doping Agency, against the verdict reached by the Spanish cycling authorities just under a year ago.

To recap, Contador tested positive for clenbuterol during the 2010 Tour de France this started a saga of delay and appeal. He is currently cleared to ride but the CAS has been hearing an appeal and the verdict is expected shortly. However, things have taken a twist in the last two days and as I set out below, it is possible that many will find any verdict unsatisfactory.

First the CAS verdict had been expected soon, possibly by this time next week. But Spanish newspaper El Mundo yesterday wrote of the possibility of extra delay. As well the article raises the prospect of additional appeal. First to the Swiss courts, because the CAS is based in Switzerland and then the nuclear option of the European Court of Human Rights. The first is almost procedural and rapid but the latter could take… years.

Now today there are extraordinary reports via the AP news agency apparently from courtroom insiders that the CAS hearings have been fraught with tension. These reports say that at one point WADA’s lawyers discussed walking out of the hearing when the CAS blocked anti-doping expert Michael Ashenden from testifying as a witness for the prosecution.

Plus this week we’ve seen questions over those involved in the case, with Radioshack-Nissan boss Flavio Becca questioning Team Saxo Bank’s trips to Israel when Contador’s case is being heard by a panel of three including an Israeli. For me this is pushing it but Becca’s arguments gain traction because the case is so fine.

Normally an appeal to the Swiss courts is only for faults in due process, if normal procedures were not followed. It’s possible that refusing to hear prosecution testimony is grounds for an appeal. But I’m not a Swiss judge.

As a reminder, the principle of “strict liability” applies, a topic I’ve covered before and the rules require an athlete who tests positive to demonstrate to a “comfortable satisfaction” that they were accidentally contaminated in order to escape a ban. In other words Contador must not merely suggest the possibility of a rogue steak but instead prove this is the most likely scenario.

No proof of doping or food contamination
Because there is no evidence of Contador eating a contaminated steak, nor evidence of him doping with clenbuterol the CAS hearing has to make the leap from what actually happened to the most probable scenario. This the field of Baysian inference and for me, at least, a minefield. It’s all about statistics and probability but to avoid algebra, here is an example from the New York Times:

suppose that police pick up a suspect and match his or her DNA to evidence collected at a crime scene. Suppose that the likelihood of a match, purely by chance, is only 1 in 10,000. Is this also the chance that they are innocent? It’s easy to make this leap, but you shouldn’t.

Here’s why. Suppose the city in which the person lives has 500,000 adult inhabitants. Given the 1 in 10,000 likelihood of a random DNA match, you’d expect that about 50 people in the city would have DNA that also matches the sample. So the suspect is only 1 of 50 people who could have been at the crime scene. Based on the DNA evidence only, the person is almost certainly innocent, not certainly guilty.

It’s about the numbers. In the example above we go from thinking there’s a 99.99% chance the suspect is guilty with the DNA match… to a 2% probability. Now imagine you are in the CAS hearing, you have to weigh up arguments from both sides like this when it comes to food contamination and blood manipulation. All this is because there is no evidence of doping or food contamination, instead each side is advancing a hypothesis as to what happened. Then this probability is weighed alongside the strict liability principle.

Given this no wonder there are delays and both sides are very nervous about the outcome. Because there is no proof and only probability, perhaps the only certainty here is that some will find the CAS verdict – which ever way it falls – deeply unsatisfying.

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{ 28 comments }

Andy Powers January 11, 2012 at 2:46 pm

By UCI rules, which Contador signed up to, he’s guilty and should’ve been sanctioned in 2010. That the Spanish Federation changed their mind, after political interference at the highest level, when set to ban him means that we’re in this ludicrous situation where he’s likely to walk free, despite having failed a test for a banned substance.

What a mess.

Ilaria January 11, 2012 at 2:58 pm

Completely agree with the previous comment

G Ospina January 11, 2012 at 5:25 pm

The reality is that food contamination occurs all the time. In the US, we find Apple juice that is contaminated, Orange juice that is contaminated, etc..
In beef alone, if you remember the whole “mad cow” incidents, that spread in very “modern and strict food handling countries”. Another thing to note is that if the test was sent to any other lab, it would have not been picked up. One can argue about consistency and probability. It’s like taking a driver’s test in a different DMV because the test is much easier there. It should be standard throughout. Increase the ability of detection introduces the need to validate the probability of cross-contamination, or at least consider the reality that things are being picked up that weren’t before.
Numbers don’t lie. Tests don’t lie, IMO. It was in his system. If he was guilty, his defense will be exactly what it is now. If he was innocent, guess what, his defense will be the same too.
Plastics is a huge health topic in the US right now. All baby bottles are EPA free now…but not all sports bottles, including gatorate bottles. Major tests going on for that. Also, plastic breakdown due to dish washers. He has a valid defense… regardless of the culpability level

Larry T. January 11, 2012 at 5:54 pm

Guilty or not? Sanctioned or not? Appealed or not? No matter what happens, pro cycling looks stupid. The average follower or casual observer will wonder, “what took so long if the guy is judged to have consumed the banned substance by accident and gets no sanction?” or “what took so long, the guy had the banned substance in both of his samples, he SHOULD be banned for a couple of years.” Until the UCI can take sanctioning away from the national federations these cases will get dragged out longer and longer to the point where nobody can even remember what race they cheated to win or how many wins they collected while using the banned substance. At this rate they can dispense with the actual bike racing and simply bring their cases to the judges and let them decide on the winners! Is it any wonder that cycling is losing fan interest worldwide?

SlapshotJC January 11, 2012 at 6:23 pm

The leadership of cycling has been doing it’s best to humiliate itself for years, this isn’t a new thing. To be honest the Contador case is a minor thing in the grand scale of the blatant and open corruption the sport has witnessed for years.

I firmly believe the sanctioning process has to be independent of sports federations that includes the UCI because there is too much scope for cover ups, for protected riders and just simple corruption. I’m not even sure this should be accredited to WADA because I can’t be certain they apply the rules properly either. Additionally to prevent this nonsense again I think that WADA and the IOC have to take a strong look at the levels which are sanctionable, 50 picograms of a substance is a joke and makes the authorities look stupid as well.
The results will be unsatisfactory for people whatever side of the arguement they are on

Sam January 11, 2012 at 6:33 pm

Framing it in black and white terms such as “it was in his system, therefore he’s guilty” leaves too many questions and does not deliver a just verdict. Systematic food contamination does occur and as G Ospina pointed out, plasticizers turn up in any number of items used daily by professional cyclists.

We can also turn this example another way: “he rode off the front and never shifted from 53 x 13 for a 250k race, climbed for 30k out of the saddle, and won by 45 minutes, but never tested positive and therefore did not ingest any banned substances.” This is exactly why we are still arguing about Armstrong’s innocence.

Does a positive test truly indicate doping? Does a negative test truly indicate a clean rider?

STB January 11, 2012 at 7:17 pm

Contador failed the drug test, that is agreed by all, therefore he has committed an offence under the UCI rules and should be sanctioned.

The offence can me mitigated if the athlete can reasonably prove that the drug was taken accidentally. In Contador’s case he will have to show reasonable evidence that he ate a contaminated steak. As far as I am aware Contador’s defence was not able to locate the source of the steak and find evidence of clenbuterol in the food chain.

So his case probably rests on historical statistics about the use and prevelance of clenbuterol in the Spanish beef industry. Clenbuterol has been used by cattle farmers to improve animals but also there is evidence that this practice has widely died out in Spain due to EU laws and animal test procedures.

The saga has now become a farce and the UCI is desperately trying to save face and avoid the embarresment of finding Contador guilty and having to sanction him and remove his recent Tour wins from the record books.

All in all, I reckon Contador will be found not guilty.

As a comparison case, the Scottish Skier Alain Baxter had his Olympic bronze medal from 2002 withdrawn after he failed a drug test for a trace amount of a compound which was in the USA version of Vick’s nasal spray, but not in the UK version of the product. Despite appealing the disqualification was upheld on the grounds of ‘strict liability’.

Rider Council January 11, 2012 at 7:17 pm

the sooner they start testing watts from January to December the better. The more complicated things get the easier it seems to hide.

Felipe January 11, 2012 at 9:32 pm

Framing it in black and white terms leaves too many questions, as @Sam said. Nevertheless try to solve all questions raised, no matter how small they are, also leaves things unresolved. You have to establish a line somewhere.

From that point of view I agree with @STB. Contador failed a drug test and recognizes that. He was not able to demonstrate to a “comfortable satisfaction” that he was accidentally contaminated. If he had done so, we would not see this case dragging for so long. Still, I believe that he will be found not guilty, and that’s a shame for the sport and UCI.

trounder January 11, 2012 at 10:50 pm

My beef is with the convoluted sanction and appeals process. We can talk Baysian Inference till the cows come home, but it doesn’t change the evidence against AC.

jimmyk January 11, 2012 at 10:59 pm

Is it just me or does contador, in the top picture, look like he is reaching for el pistol & getting ready for a victory salute in typical fashion.

What a cowboy he is

OJT January 11, 2012 at 11:59 pm

Becca’s view on the Saxo team visit to Israel is way off the mark. The trip won’t influence Ephraim Barak at all. And the stories about Barak going to the same conferences as the defence team seem to be a case of confusing ‘conspiracy’ and ‘coincidence’.

What are more interesting are the leaks from the courtroom. It’s not clear to me why Michael Ashenden’s testimony would be deemed inadmissible, particularly as the decision appears to have been taken before his views were aired. Presumably the judges knew from a written statement what he intended to cover in his testimony? Otherwise I’m not sure how they could decide they should not hear from him, if they had not heard heard from him. So far Ashenden has kept quiet when approached by the press. Hopefully we will hear his thoughts after the verdict is announced.

Paul January 12, 2012 at 12:17 am

Let’s find him not guilty just so that Andy Schlek remains runner-up of Le Tour.

On the other hand, because he tested positive to a banned substance I feel he should be stripped of that title regardless of how he came to test positive. If CAS decide that he tested positive due to the contaminated steak then he should be allowed to continue cycling with the only penalty the loss of the Tour de France title. If they feel that Contador tested positive through doping then he should face a 2 year ban.

Leif January 12, 2012 at 1:23 am

I am surprised that no formal investigation or charges have been made against the UCI for attempting to cover up these tests.
Would either the IOC or WADA be able to take such action?

Robert Merkel January 12, 2012 at 1:57 am

Is the technical evidence of the case publicly available?

I happen to work with some people who literally wrote the book on Bayesian inference. It would be fascinating to see their take on the evidence presented…

Bundle January 12, 2012 at 2:31 am

Very good piece, especially the humorous parts. I say this because, unfortunately, hilarity is becoming all too often the best approach to anti-doping enforcement.

daniel January 12, 2012 at 6:41 am

@Paul
Yeah my dislike of the Schlecks has had me thinking this for a while.

Already it feels like too much time has passed to punish him, aside from taking that Tour victory away. A retroactive banning (stripping last year’s results) would be ridiculous.
If they ban him from the day of the CAS verdict that also seems wrong somehow, as the incident was so long in the past. Piti had to wait a long time to get his comeuppance though.

Kieran January 12, 2012 at 10:34 am

From my understanding the example on the bayesian inference the evidence would not indicate that he is almost certainly innocent, it is just that the probability is not small enough to provide convincing evidence that he commited the crime, ‘Absence of evidence is not evidence of absence’ . Without the DNA evidence the probability he did it is i in 500,000 (assuming anyone in the city could have done it ), but with the DNA evidence this 1 in 500,000 has been reduced to 1 in 50. The DNA would be supporting evidence. Only if the DNA did not match would it help to show him innocent.

From wikipedia “There has been some skepticism of Contador’s claim that contaminated meat was to blame. In 2008 and 2009, only one animal sample came back positive for clenbuterol out of 83,203 animal samples tested by EU member nations. Out of 19,431 animal tests in Spain over the same period, there were no samples that came back positive for clenbuterol.” So maybe the prior probabilities are not too high for accidental contamination from beef?

Ian January 12, 2012 at 1:15 pm

Good grief Charlie Brown, what an utter shambles. As the newbie to trying to follow the pro season in some detail, with the excellent help of all on here, this situation seems to defie all logic and common sense. Never did I think that when I looked at the blog today I would be trying to understand Baysian inference !! Guess the old adage is right – you learn something new everyday.

Tom January 12, 2012 at 3:06 pm

I believe Contador doped. I further believe this wasn’t his first time doping. After all, he was named in the Puerto affair. Regardless, this case should have been heard and tried swiftly.

Other athletes wouldn’t get the same benefit of the doubt. The champion above all should be required to adhere to the rules of strict liability. This is patently unfair to the other athletes who aren’t doping.

AC getting a pass for doping is just a continuation of the LA rules…

Gene Sanders January 12, 2012 at 4:49 pm

Lies < Damned Lies < Statistics

channel_zero January 12, 2012 at 5:46 pm

Every single time Contador’s case comes up, no one seems to remember Li Fu Yu’s Clen positive. That Adverse Analytical Finding was announced and poof! He’s out of the World Tour in under 10 days. Contador gets popped and we’re how many months into a finding? This cuts straight to the UCI’s permissive practices towards doping. Perhaps best summarized as “The UCI has provided the criteria for riders to dope so no one dies of a heart attack. Let the doping commence!”

Anyone still trying to rationalize clenbuterol ending up in his food are just pretending. The EU food supply standards for meat are extremely high and the supply is tested. If this happened in Mexico or China, one could reasonably conclude there was a legitimate possibility clenbuterol was introduced via the meat provided. Not just beef, chicken too. But, this case happened in the EU.

RichardJ January 13, 2012 at 1:14 am

My understanding of the WADA Code is similar to Paul’s above. An individual who tests positive in an event cannot keep their results from that event. It is clear Alberto Contador should at the very least be stripped of his results from the 2010 TdF. I cannot see how they can get around that rule.

It is sad these cases take so long. Here it is 2012 with the season is starting to wind up and still we have no conclusion to this. It is sad CAS refused to allow the WADA expert testify when Contador had his teammates testifying for him. If that is an indication of how this is going to end, It would not surprise me Alberto Contador gets off completely.

betsy January 13, 2012 at 5:19 am

The mindset is this: the biggest cheater of all got away with it (not for long), I’ll take my chances too.
Zero tolerance means zero tolerance. Too bad Contador didn’t give Hein or Paddy 125K and become unresonably cozy with them. I’m sure had he, he wouldn’t even be in this situation. Then again, there was the German reporter who wouldn’t be bought off who broke the news of all of this.

Doug January 13, 2012 at 2:47 pm

“The biggest cheater of all”? I’m sorry, but if you are going to libel anybody you should have the courage to name them and then face the consequences. Snide comments and innuendo have no place where athletes are fighting for their reputations and livelihoods. Whether we like it or not we have due process and a burden and standard of proof to discharge. If we abandon those concepts we are in serious trouble as a society. Leave it to the Court to weigh the evidence presented and then decide.

David January 13, 2012 at 5:55 pm

I hear the technical and legal arguments but let’s look at the facts. Contador tested positive the stage before he rode his worst Tdf time-trial ever. He finished just a few seconds ahead of Schleck a year after he won the time-trial and beat Cancellera. He shifted constantly in the seat during the time-trial and when interviewed immediately after the time-trial stage he said he had a stomach bug and hardly slept the night before.. Take that circumstantial and factual evidence into account and his food poisoning argument begins to hold water. Drugs don’t make you ride a slower time-trial. Even in the 2011 time-trial, Contador beat Schleck by a minute and a half and was top five.

highstream January 14, 2012 at 7:05 am

For a more complete presentation of the statistical problems and solutions associated with drug testing, see Werner Pitsch, “‘The science of doping’ revisited: Fallacies of the current anti-doping regime,” European Journal of Sports Science, 9(2): 87-95, March 2009. The reference and first page is at http://www.tandfonline.com/doi/abs/10.1080/17461390802702309?journalCode=tejs20#preview.

Larry T. January 14, 2012 at 10:02 am

http://www.amazon.com/Ethics-Doping-Anti-Doping-Redeeming-Sport/dp/0415484669/ref=sr_1_1?ie=UTF8&qid=1326531446&sr=8-1
is an excellent book on this topic. Only here on the ‘ring can we have discussions that, (for the most part) do not degenerate into “you suck!” “NO, YOU SUCK!” in regards to doping issues. As someone smarter than me once said, everyone is entitled to their own opinion but they’re NOT entitled to their own FACTS. I hope it stays this way. (Disclaimer: my wife is part of the editorial staff on these publications which is how I came to read it)

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