Why is the Contador case taking so long?

Tuesday, 17 January 2012

Yesterday The Court of Arbitration for Sport said it will deliver its verdict in two weeks’ time. The news of an additional delay prompted wisecracks like needing a geologist to measure the time taken and apparently the CAS is still chewing over an appeal from the Macedonians to settle the javelin competition from the 776BC Olympiad.

But it’s no joke that Contador tested positive for clenbuterol 545 days ago. Why is this so long? Here’s a timeline of events. By my reckoning, everyone involved has delayed and maximised the time taken.

21 July 2010 samples collected during Tour de France rest day
24 August 2010 Contador informed of positive test
29 September 2010 news of the positive test leaked to a German TV station
30 September 2010 the announcement that Contador is formally suspended by the UCI
8 November 2010 UCI asks the RFEC to start disciplinary hearings
26 January 2011 RFEC proposes a one year ban on Contador
15 February 2011 RFEC verdict clears Contador
14 March 2011 UCI confirms it will appeal the RFEC ruling at the CAS
26 May 2011 CAS postpones hearing from June to August
25 July 2011 CAS postpones hearing from August to November
21 December 2011 CAS says verdict expected between 15-20 January
16 January 2012 CAS postpones announcement of verdict for two weeks

 

Each line marks a date but a lot has happened in between each event. Indeed, just look at the delays involved. It took over a month to inform Contador of his positive test. During this period Contador conveniently declared an injury ruled him out of racing but it took another month for German journalist Hajo Seppelt to flush the news out from the UCI. That’s two months to make the positive test official, a long delay by itself.

This then set off a chain of further delays. One week later the UCI swings into action to ask the Spanish cycling federation, the RFEC, to review the case but this takes a lot of time, in fact it takes too long. Any delay of more than a month is supposed to result in a fine for every extra week of delay (UCI rule 280) but I understand no fine was levied. After three months, the UCI is meant to take the matter to the CAS (Rule 281). In the end the RFEC ruled three months and a week, stretching the time taken out.

Come the spring of 2011 and the UCI took the maximum possible period of time to decide to appeal. Nothing wrong with that, checking the details before launching legal action always makes sense. But it’s another part of the delay and note that the UCI had its hands full and lawyers working full time on prosecuting Franco Pellizotti and others with its pioneer bio passport scheme back then.

Then came a series of delays at the CAS. We were due to have the hearing last June but whilst Contador was busy in the Giro d’Italia, his lawyers were asking for the hearing to be postponed. This was granted and the hearing moved to August, perfect timing to ensure a worry-free approach the Tour de France.

By then the complexity of the case was becoming apparent with sophisticated arguments being used on all sides. All parties involved were submitting prolific documentation and argumentation. In order to avoid being overwhelmed all agreed to postpone the hearing from August to November.

We then had the hearing in late November where all sides, incluiding Contador, spent several days at the CAS to plead their case. We now know this was a heated affair at times with WADA’s lawyers almost walking out at one point; when this news leaked earlier this month the CAS froze its deliberations to check all parties were happy and they have now said yes, which explains the most recent delay.

So that’s why things have taken so long. Many sports fans, more used to photo-finishes and instant race reports, find this delay impossible but the wheels of justice are not deep section carbon rims with ceramic bearings. In some cases people and organisations involved have broken their own rules regarding time tables but in other instances it’s because the case is complicated that people have asked for more time, which is only fair.

It still matters
The 2010 Tour de France might seem distant now but all this isn’t only to settle the result of races past although that is still highly significant. But the verdict could change the future of sport too. If there was a ban then Saxo Bank team would be in trouble as their key man disappears. No ban and WADA’s Code, its bible, could be undermined if the principle of strict liability is dropped. Whoever loses is going to pay big legal bills.

No end date
I’m hoping yesterday’s announcement that the verdict is coming is the legal version of the flamme rouge and that we’re closing in on the finish line for this saga.

But the CAS verdict is not the end date. First the verdict can be appealed to the Swiss courts but generally the courts only rule on whether due process has been followed by the CAS, they do not get involved in the interpretation of the WADA code or the concentration levels of a banned substance. Then there’s a final stage of appeal, going to the European Courts of Human Rights in Strasbourg but this could take years and would only be a sideshow that rumbled on in the background.

Summary
This case has taken a long time but hopefully it’s in the finishing straight right now. The delays are frustrating but don’t blame the CAS alone, the 545 days are down to practically every party involved in this case delaying or asking for more time. And although the story is going stale it matters for the future of sport, WADA and more.

Kasper January 17, 2012 at 1:14 pm

As a fan of the sport, this is hugely frustrating. Not so much because of the time it takes, but because of the constant delays. It’s the mixed messages that undermine ones trust to the system.

If they had said that day in august, that Contador had been tested positive and in 24 months a verdict would be read. Then it would have spared all the frustration and we could have gone on with the debate of optimizing this process. No one can live with a time frame like this. Basically all the races that Contador has participated in, is tainted in some way, because he might be convicted and stripped of the victories. The fans, the organizers and the riders know that.

But the question for me is. What can in reality be done to speed up a process like this?

Rune January 17, 2012 at 1:22 pm

There is a little mistake in the timeline regarding yesterday.

The Inner Ring January 17, 2012 at 2:24 pm

Kasper: good question. People have taken as much time as possible, one response could be to shorten the timing allowed for each step. I’m still unsure as to why the UCI took so long to announce the story early on.

Rune: fixed, thanks. All corrections are always welcome.

Larry T. January 17, 2012 at 3:12 pm

“…more time, which is only fair.” It’s NOT fair to everyone else in the races Il Pistolero has been in since the positive dope test. Reminds me of Damiano Cunego’s comments after Basso’s 2006 dominating “victory” in the Giro. Of course Basso had only thought about doping but the guy on the next step of the podium was later nabbed I think and on the third step was Gilberto Simoni who’s had his own issues with banned substances. It’s almost like they need two prizes, overall winner and first clean guy. How would you feel if you were the 2nd place guy and hadn’t cheated (I’m not claiming any of the guys one step below Il Pistolero were/are clean) even if you’re awarded the victory later (much later) when the cheater is DQ’d? And the fans? What are they supposed to think? It’s truly sad when you witness an well-earned victory but think to yourself, “that was great, but now we must wait (and wait) to see if the guy passes the dope tests.” And even if he DOES pass them, will he get caught later and eventually admit he cheated during his entire career? This mess must be cleaned up or pro cycling will simply go away. The current lack of interested sponsors is NOT just because of the world economic crisis, pro cycling’s headed for the toilet unless everyone involved takes an interest in cleaning it up rather than lining their pockets.

BikeRog January 17, 2012 at 5:18 pm

“Justice delayed is justice denied” That old saw still rings true, doesn’t it?

JP January 17, 2012 at 6:03 pm

This goes on at every level of every type of tribunal. Think a few months is a long time? Try an appeal to a U.S Court of Appeals…getting an actual decision can take YEARS. How about NCAA investigations (big news in the US this year). They take all the time they want/need, and in the meantime the teams keep playing…all it seems to do is give the analysts something more to talk about. Unfortunately, delay will always be a part of any process that requires humans to establish and analyze facts (or the lack thereof). The solution is simple: cyborgs.

Al January 17, 2012 at 6:36 pm

Embarrassing really.

Fuyu Li: tested positive in March 2010, sanctioned in April 2010.
Tom Zirbel: tested positive in November 2010, sanctioned in January 2011.

Clearly the UCI and associated federations are capable of acting quickly, but Contador is the UCI golden boy so they have to stretch this out as long as possible in hopes that interest will fade and they can quietly let him off the hook

benDE January 17, 2012 at 6:44 pm

All the delays are to me other then the first regarding the news being broken only by investigative journalism in Germany. Who know how long, if ever, it would have take for the positive test to come to light. This has yet to be explained. Sadly the only explanation that makes any sense to me is of a cover-up by the UCI and a tour champ. Not the first time that accusation has been made.

benDE January 17, 2012 at 6:48 pm

As an aside-Bring back the ‘suspicion index’!! I was sick at first but now see it as a way doping controllers can say, ‘well, we can’t bust him but there is something you might want to know . . . . .’

cthulhu January 17, 2012 at 6:49 pm

Imagine Contador wouldn’t be allowed to race until there has been a verdict….I wonder much time that case would have taken.

But clearly this way it is not fair, since he is directly through winning price money and indirectly through getting lime light and sponsor presense taking money away from those not tested positive. And in my opinion the biggest problem his penalty if he is found guilty will be dated back to the day of the positive test rendering his two year ban invalid since it it will effectively be over once the verdict is spoken. He might have to give back some throphies and his name will be taken off the winner lists but he has no financial penalty or whatsoever and that would be the only thing that would really hurt him.

The Inner Ring January 17, 2012 at 7:32 pm

Don’t forget the obvious point that he has been cleared to race and that the UCI and WADA are appealing; from the moment Contador was informed and announced his “injury” in August 2010 to the date the Spanish cleared him in early 2011 he never rode a race against anyone. It’d be hard to suspend an athlete pending any appeal to the CAS.

Larry T. January 17, 2012 at 10:04 pm

I don’t agree with the “it’d be hard to suspend an athlete…” argument. If the Spanish Federation wasn’t corrupt they’d have sanctioned Il Pistolero right away and he’d not have raced the 2011 Giro and Tour. “Hot-Air” McQuaid’s made some noises about taking the sanctioning away from the obvious conflict-of-interest national federations but so far it’s been….well….hot air. I believe there are FAR more athletes getting away with cheating vs innocent ones being snared in tests that are too sensitive, the system is set up that way…..only with positive tests are sanctions being leveled. Now that the bio passport has passed CAS scrutiny with some higher-profile cheats, the excuses for delays of this nature are ridiculous. Nobody is going to jail or being executed, they just need to find some other employment for a couple of years – then, just as The Green Bullet, they can come back and show us all that it wasn’t the doping that made them so great….or not.

Bundle January 17, 2012 at 10:24 pm

As this is a sport, a game with rules, after all, the priority is not the accuracy of the refereeing but the game being allowed to proceed fast. I prefer a wrong arbitration, pronounced immediately and not open to appeal, than the best decision, taken many months after the game was over, and subject to yet another appeal.

The Inner Ring January 17, 2012 at 10:35 pm

Bundle: I hear you but for those involved, their earnings and reputations are in play too, they have a different perspective.

cthulhu January 18, 2012 at 1:29 am

INRNG: I know. But still to the majority of the public it will just sound wrong. I think if he is found guilty and would get a ban of two years minus those weeks from the positive test to the Spanish clearing, people will believe justice is done. But I fear it will be as always, two years minus all the months since the positive test and that is something people won’t understand and effectively render the punishment ineffective.

And Al is right, the whole thing stinks of favourism. Look how fast “unknown” people get sanctioned, and how usually the UCI goes public after a positive A-sample, while in this case the didn’t announced it after the positive B-sample only after a media threat, and the Spanish verdict sounds very fishy too. Yes, AC has more and especially more wealthy backup than those two named riders, so I can understand for the parties to get their things absolutely correct, still this playing on time looks like it is just to avoid any serious consequences.

DDAvis January 18, 2012 at 2:11 am

If the company at which I work pops a worker w/urine test, he goes out the door THAT DAY. Any other cysclist than AC, and BYE BYE for a long time of relaxation.

asgelle January 18, 2012 at 2:35 am

“Fuyu Li: tested positive in March 2010, sanctioned in April 2010.
Tom Zirbel: tested positive in November 2010, sanctioned in January 2011.”
Both these athletes accepted their suspension without challenge. Yes, justice can work quickly when the accused admits guilt. Ensuring due process isn’t so easy.

Jim January 18, 2012 at 3:13 am

In my book he’s innocent. Showing no history of cheating. Even if he’s mistakenly found guilty, this time spent on the hot seat should be the penalty. Time served. Imagine yourself in his shoes. What gets me is people against him don’t want justice, they want him out of the way so they’re fav can have a go at TDF. RS and they’re sour grapes is a perfect example, even their fearless leader is under the scrutiny of doping investigation(Lance).

Larry T. January 18, 2012 at 8:37 am

Except he’s NOT innocent Jim. He does not contest the finding of the banned substance in his samples. Instead he’s “guilty with an explanation” like they used to say in traffic court, and hoping for just a “don’t do it again!” sentence. His background with Manolo Saiz and the Puerto fiasco suggest he’s less than a choir-boy when it comes to cheating. “Justice” really doesn’t matter, the rules clearly state no amount of this substance is allowed and unless the athlete can come up with a plausible explanation of how it came to be there, other than deliberate intake (ie the beef that he has no example of along with nothing much in the way of evidence that this beef is routinely contaminated) he’s GUILTY of breaking the rules and should serve a period of time out of the sport with all his results during the period wiped out. But when a guy gets off by claiming he was contaminated by kissing a disco slut, the door’s wide open as to whether they’ll fall for his explanation. But either way pro cycling looks stupid and sponsorship of pro bike racing teams less wise.

andrewp January 18, 2012 at 9:40 am

Find the delay between the test and the UCI officially reporting it less troubling than most seem to. The testing at the Tour that year was being overseen by WADA officers for a IO report, and all WADA accredited labs have to report Adverse Analytical and Atypical findings to the testing authority, the international fed (if different) and WADA simultaneously. So chances of the UCI making the result “go away” or successfully covering it up would appear to be slim to none. Arguably any international fed can now only cover up such a test result with WADA compliance/incompetence.

Perhaps the UCI were arranging the further tests on all the samples taken at the Tour in that time. Could just be straightforward news management – choosing for the announcement to appear after the Worlds (wonder if the german journalist that “uncovered” the story also waited a few days for the worlds to come round before breaking the story?)

Nikolai January 18, 2012 at 10:17 am

@Jim Jim, I don’t know what kind of book it is you’re referring to as “my” but the only relevant book here is the WADA “book”. Here’s a link to it: http://www.wada-ama.org/en/World-Anti-Doping-Program/Sports-and-Anti-Doping-Organizations/The-Code/

In it, you’ll find that an athlete is guilty of a doping violation if a banned substance is found in his sample. The only way for an athlete to escape the sanction is to **prove** a “no fault or negligence” and then, once this is done, also “establish how the Prohibited Substance entered his or her system.” (Section 10.5.1) How this can be done without showing the steak or leftover of the steak or the source of the steak, I don’t know because without the steak, how does he know clenbuterol came from the steak?

Why WADA even bothers trying to contradict Contador’s arguments coming up with blood transfusions theories and what not, is unclear either. The whole thing is a circus.

cthulhu January 18, 2012 at 10:27 am

andrewp: the test were examined in a German laboratory. Both samples turned up positive and the UCI was noticed. Apparently AC was noticed by the UCI but no one else and “nothing” was done. The laboratory/WADA themselves are not allowed to publish their results and it looked like the UCI tried to cover up. Frustrated with that one of the lab workers told the journalist where to look and who to ask. That is as far as I remember reading it.
I personally doubt that the journalist waited for the worlds for a bigger media stage, busting AC would have been big at any time. If anyone is to blame then the UCI for not going public earlier. The A sample was examined months ago and even the B-sample was done weeks before.

Anonymous January 18, 2012 at 10:30 am

Yawn! This is the most boring thing ever to hit cycling!

OJT January 18, 2012 at 11:11 pm

Nikolai has hit the nail. Strict liability is why Li and Zirbel didn’t fight any harder. Contador’s defence seems from the outside to be relying on slim probabilities instead of the dead certainties that the rules require. Either way, there is no ‘good result’ in a case this big and drawn out. Contador is probably the least affected. He’s rich already and young enough to come back after a wilderness period (if there is one). Riis is looking at his team dying. The riders and staff on the team are looking at unemployment. Other teams are looking at the barren sponsorship period continuing. WADA is looking at a key plank of its rulebook being ripped up. There is no ‘good news’ other than the wait being over.

inopinatus January 20, 2012 at 1:34 am

There’s nothing inherently wrong with challenging a rulebook. Every legal system is well served by cases that test the margins where rules may not be aligned with principles.

In this case the amount detected is below the threshold for biological effect (and by a laboratory that is unusually sensitive), so there is no evidence that the athlete’s performance was substantively enhanced at the time; the zero readings either side of the day in question confirm that it is not at the end of a metabolic half-life. In the hands of a skilled lawyer, this could be an effective defence against the primary charge and is certainly a basis for appeal.

The secondary argument that this constitutes evidence of some other doping is an exceptionally flimsy allegation, since it must be combined with the use of substances (plasticisers) for which no control programme exists and that have a very high probability of a type 1 error in hypothesis testing. Heck, I have a high level of plasticisers just from drinking out of bottles all day.

At the end of the day, any conviction must be beyond reproach and be seen to be beyond reproach. This is why “reasonable doubt” is sufficient for acquittal in criminal cases, and the same standard of justice must apply to any case where a penalty is applied to an individual.

I don’t envy the CAS panel in making this judgement, but based on the public evidence I would acquit. There seems to be reasonable doubt.

Nikolai January 20, 2012 at 3:16 am

@inopinatus Also I find your argument compelling, it has a fatal flaw – it hinges on the fact that the amount of banned substance found in Contador’s sample was very small. This is where the “book” comes in (it could be a criminal code “book” or an anti-doping code “book”, it doesn’t matter). In the code, with some substances, it matters not how much is found nor how much performance the found amount can, in **theory**, enhance. After all, the anti-doping code is not about measuring how much each substance can enhance performance, it’s about not allowing some substances to be present in an athlete’s body. How much each banned substance is effective in performance enhancing is not part of the code, it’s left for qualified persons to determine the effectiveness of various drugs and then make amendments to what substances should completely be banned or only certain amounts.

Contador turned up a positive test for a substance that was not supposed to be in his body and unless he **proves** a “no fault” or “no negligence” clause of the current code and **then** how the substance entered his body, he must be sanctioned.

inopinatus January 20, 2012 at 3:33 am

@Nikolai. My point directly contradicts yours. I’m saying the book can always, in principle, be challenged. The notion that bad rules / bad laws can be overridden is one that few professional jurists would willingly abandon.

I don’t know to what philosophy of law the CAS subscribes exactly but I’m be very surprised if they weren’t being forced to consider this possibility by the defence.

Note: the most famous attempt to codify this situation is in the Constitution of the United States, which is notoriously used as a set of principles for challenges to legislation. Of course, this experiment led to one of the most complex legal systems in the world today, but also one of the most robust.

Let me supply a thought experiment. Imagine you have been in a room where, without your knowledge, an open vial of an illegal drug is slowly evaporating. It’s very possible that you, as a result, have a few molecules of the stuff on your skin. That day, you fail a swab test conducted by a laboratory sensitive enough to detect one part in 10^23. You are subsequently banned from your chosen profession.

Is that justice? Obviously not – molecular-scale quantities being what they are, it’s likely we ALL walk around with a banned substance in our bodies! Therefore, there is a limit of detection at which we draw the line. The problem for CAS is where to draw it, and to what extent their philosophy and jurisdiction allows them to set aside the WADA rulebook on the grounds of failing natural justice – especially when there is flimsy but nonetheless acknowledged evidence to the contrary.

OJT January 20, 2012 at 11:44 pm

@inopinatus I agree it is right to question the rules. Strict liability does not sit well with increased sensitivity of testing. It is becoming an outdated rule and will need to amended sooner or later.

NB Fuyu Li was sanctioned for a similar level of clenbuterol: “0.05-0.10 ng/mL” of urine vs “50 pg/mL” of urine in Contador’s case. 50 picograms is 0.05 nanograms. If my memory serves, Li did not go to CAS.

However, other athletes have already gone to CAS in strict liability cases. CAS have applied the rules as they are written and sanctioned the athlete, even though in CAS’s view the athlete had not intentionally doped. In my view, CAS should do the same this time and make strong representations in their concluding statements that the rules on strict liability need to be changed. Joe Lindsey covered all this and more in Sept 2010, in one of his many well-researched and cogent blog posts:

http://bicycling.com/blogs/boulderreport/2010/09/30/contador-case-means-hard-choices-for-anti-doping/

The issue now is whether CAS will remain in line with their previous judgements or create a precedent.

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