The Court of Arbitration in Sport has delivered its verdict on Alberto Contador. He is suspended for two years with the ban starting on 25 January 2011.
His results in the 2010 Tour de France win are erased and all results obtained since 25 January 2011, including the Giro d’Italia are removed too. Comment and analysis below.
Alberto Contador won the Tour de France with the Astana team that year but later it was revealed he had tested positive for a banned substance on a rest day when the race was staying in Pau, the large town by the Pyrenees. The sample contained a very small amount of clenbuterol, a banned substance.
To summarise, the news of this positive test was not released until much later and in time he was cleared in full by the Spanish cycling federation, the RFEC. But the UCI, cycling’s governing body, and the World Anti-Doping Agency were unsatisfied with this and appealed the verdict to the Court of Arbitration in Sport (CAS). 566 days later we get the verdict.
The Panel found that there were no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities.
The Panel concluded that both the meat contamination scenario and the blood transfusion scenario were, in theory, possible explanations for the adverse analytical findings, but were however equally unlikely. In the Panel’s opinion on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement.
…none of the considerations for eliminating or reducing the period of ineligibility were me, on the basis the basis of the UCI Anti-Doping Regulations, the Panel decided to sanction Alberto Contador with a two year period of ineligibility.
…The Panel decided to fix the starting date of the suspension on 25 January 2011, which is the date on which the RFEC [Spanish Cycling Federation] proposed to suspend Alberto Contador for one year. Furthermore in accordance with the applicable regulations the 2010 Tour de France results achieved by Alberto Contador are disqualified as well as the results obtained in all competitions in which he participated after 25 January 2011.
That’s a statement from the CAS. They read a 4,000 page file and deliberated but at no point was the positive test disputed nor the principle that in order to avoid a sanction Contador had to establish where the source of contamination came from and that he’d committed no fault or negligence.
Comment and analysis
The ban is for two years starting in January 2011 but he was provisionally suspended following the positive test for five months and 19 days and this is subtracted from the total meaning his suspension ends on 5 August 2012.
An appeal is possible. CAS verdicts are binding. Contador is suspended and whilst he might consider further appeals, he cannot race for now. There are two appeal routes. First, to the Swiss courts over procedural matters, for example if the CAS did not follow its own rules but this route has rarely proved successful in the past. The second route would be an appeal to the European Court of Human Rights but this a procedure that can take years. My impression is that he’s spent enough on lawyers already.
A two year ban is surprising. I had been expecting a ban of six months to one year, a sanction to reflect the positive test and the strict liability principle of the WADA Code and Contador’s inability to prove the source contamination. But also 10.5 of the Code which deals with proportionality, in this case to reflect the minuscule quantity of clenbuterol discovered. Nevertheless it seems he was unable to mitigate this at all with any evidence of contaminated beef. So he gets the WADA code and its strict liability principle in full.
Where’s the beef: WADA and the Basque health authorities traced the supply chain behind the “rogue steak” and no clenbuterol contamination was detected. Contador’s defence team suggested that it was possible for contaminated meat to enter the food chain but CAS ruled the possible was very low.
Blood doping and plasticisers: the UCI and WADA sought to establish the possibility that Contador tested positive after infusing blood (blood doping) and that it was likely this infusion contained blood stored during a past period when he also consumed clenbuterol. But many of Contador’s blood values were normal and whilst the UCI’s Michael Ashenden tried to continue with this path, the CAS ruled this out stating the probability of blood doping was equally unlikely as meat contamination.
So what happened? Nobody can say for sure. CAS has merely ruled that the probability of contaminated meat is very low. With the lack of evidence to excuse Contador, the presence of clenbuterol is the key fact and this brings with it a ban.
Why the ban from 25 January 2011? Simple, this was when Alberto Contador’s case finally got a hearing with the RFEC. It took five months and 19 days for this to happen. For the previous five months prior to this he had been provisionally suspended. The suspension is two years from January 2011 with the five months subtracted.
He didn’t fail a test during the 2011 Giro but Contador is stripped of the result. This is because the result was obtained during his “period of ineligibility”, in other words the CAS has concluded he should be banned from the date of his hearing and the Giro d’Italia, amongst other races, is included during this period.
Contador himself takes a big hit, both personally – he is now a convicted doper – but also to his bank account. He had assembled a large team of lawyers and advisers and will have to meet the cost of this in full. Indeed the UCI is seeking a €2,485,000 fine from Contador and the CAS has said it will review this decision at a later date. In addition Contador could have to pay for the UCI’s legal expenses and more.
The Saxo Bank team loses here their star rider. They counted on him for the Pro Tour status. He will be back for the 2012 Vuelta and his participation seems guaranteed but it remains to be seen what happens. There could be automatic clauses in the contract to sack him for doping offences. If the UCI take his ranking points away then Saxo will struggle for ranking points to stay in the top flight for 2013.
Saxo Banned? There is some talk that the team could lose its ProTeam status with the UCI. I’m less sure. The UCI’s Licence Commission is set to review things and here’s rule 2.15.040:
The licence commission may withdraw the licence… …if the information taken into account in granting the licence or the registration of the UCI ProTeam has changed such that the issue conditions are no longer fulfilled, or the commission considers that the new situation does not justify the issue of a licence or registration
I’ve edited the text for brevity. The information used to award the licence was based on Contador having a full set of results and the corresponding sackful of ranking points. But the decision was taken in good faith and any retrospective decision would be unlikely given the Saxo Bank team management is not at fault here. The situation was far from identical but Riccardo Riccò’s ban did not jeopardise Vacansoleil’s licence. This would be harsh on the sponsors, riders and staff alike who have not been blamed by the UCI, WADA or CAS today.
The Spanish Federation loses too as the UCI and WADA were appealing the RFEC ruling. Their decision to absolve Contador comes in for strong criticism and I tend to agree that the RFEC did not follow its own rules, namely that it was up to Contador and his defence team to prove in the balance of probability that the contaminated beef hypothesis was correct.
Winners? Andy Schleck becomes the winner of the 2010 Tour de France, Michele Scarponi is the 2011 Giro d’Italia winner. Many other race results are rejigged. But of course nobody can climb onto a podium or spray champagne at the crowds and enjoy the moment so there are no winners. Here’s the response from Andy Schleck:
“I feel sad for Alberto. I always believed in his innocence. This is just a very sad day for cycling. The only positive news is that there is a verdict after 566 days of uncertainty. We can finally move on… …I trust that the CAS judges took all things into consideration after reading a 4,000 page file. If now I am declared overall winner of the 2010 Tour de France it will not make me happy“
WADA is the winner today, its Code and the principle of strict liability is upheld in full.
What about those who escaped a ban for Clenbuterol? There have been cases of German table-tennis players and Mexican footballers escaping a ban despite a positive test for clenbuterol. CAS ruled that the probability of food contamination was likely in China, where the German visited, and Mexico. However with Contador it says this is less likely, below the balance of probability.
UCI reaction is out and the quote attributed to UCI President Pat McQuaid is as follows:
“This is a sad day for our sport. Some may think of it as a victory, but that is not at all the case. There are no winners when it comes to the issue of doping: every case, irrespective of its characteristics, is always a case too many.“
Sad perhaps but the UCI will breathe a big sigh of relief as it has spent a small fortune prosecuting this case with WADA. The news even took the UCI by surprise.
Juicy detail: At one point Contador’s defence was arguing with the UCI and WADA over the weight of the calf from which the veal steak came from. Based on the weight of the cut, 3.2kg, they extrapolated the weight of the calf. One side said 350kg, the other said under 290kg.
Contador’s claimed his positive test came after eating a contaminated veal sirloin. Yet he could not prove this. Under WADA rules adopted by the UCI it is up to the athlete to prove accidental ingestion and non-negligence to escape sanction, or shorten a ban. Therefore CAS quoted the WADA rules that a two year ban should be imposed.
My opinion is that this is a firm ruling, perhaps the principle of proportionality could have been applied to state the 50 picograms per millilitre concentration was modest and, by extension, a reduced ban imposed.
Nevertheless, in reading the full award from the CAS, I’m surprised by the relatively weak arguments put forward by his defence team. At one point they attempted to cite wider components of Swiss law and redefine certain issues. But the CAS rejected this novel approach, sticking instead to ruling on whether the WADA/UCI rules were applied by the RFEC. If Contador couldn’t prove where the contamination came from then the rules are clear: a two year ban.
Contador spent a fortune on hiring the finest lawyers in the field only to have the black and white text of the WADA Code read back to him.