“One can only regret the time lag between the sports and media, and that of justice”
Those are the words of Tour de France organiser Christian Prudhomme, discussing the almost never-ending series of delays and postponments to the saga that is Alberto Contador’s positive test for Clenbuterol. Reading the Velonation article, Prudhomme says he “won’t block Contador” but he is frustrated with the delays and rightly so given the uncertainties, question marks and apparent inability of the sport to sort out this matter.
In the piece, I saw a timeline of events mentioned. I think it might be worth going in to greater detail here, to explore why this is taking so long, and to revisit the basic rules in the light of these delays, in case we forget what it’s all about.
21 July: samples collected during Tour de France rest day
24 August: Contador “informed” of positive test
29 September: news of the positive test leaked to a German TV station
30 September: the announcement that Contador is formally suspended by the UCI
8 November: the UCI asks the Spanish Federation (RFEC) to start disciplinary hearings
26 January: RFEC imposes a one year ban on Contador
15 February: RFEC verdict clears Contador
14 March: UCI confirms it will appeal the RFEC ruling at the Court of Arbitration for Sport (CAS)
Now I don’t know if you’re good at reading between the line but in the chronology above, every single item is separated by delay caused by the UCI.
Indeed I have it on good authority that the public timings, as presented here, might not be the full story. It appears the lab results from Contador’s positive tests were received earlier by the UCI and the information given in late August was when confirmation of both the A and B samples came back positive. By this time plenty of work was being done to get to the bottom of the case and, if you believe El Pais, the UCI was seeking to bury the story… until it went public after a leak.
Regardless, we still see well over a month’s delay until the UCI instructs the RFEC to handle the matter. Then the Spanish authorities play it slow, not reaching a verdict until mid-February. But the UCI rules require a faster verdict, indeed any delay of more than a month is supposed to result in a fine for every extra week of delay (UCI rule 280). 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.
Then the UCI announced it would appeal, but not until the very last day of the window to appeal, meaning more delay. In mitigation, note at the time the UCI was busy at the CAS with the Franco Pellezotti case but all the same, it’s another month of delay.
And now we hear the CAS has delayed the original hearing of the appeals from June to August. Indeed it is possible that the August hearings are delayed too.
But what of the rules?
295. Where a Rider or Rider Support Personnel can establish how a Specified Substance entered his body or came into his possession and that such Specified Substance was not intended to enhance the Rider’s sport performance or mask the use of a performance-enhancing substance, the period of Ineligibility for a first violation found in article 293 shall be replaced with the following: at a minimum, a reprimand and no period of Ineligibility from future Events, and at a maximum, two (2) years of Ineligibility. To justify any elimination or reduction, the License-Holder must produce corroborating evidence in addition to his word which establishes to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the use of a performance enhancing substance. The License-Holder’s degree of fault shall be the criterion considered in assessing any reduction of the period of Ineligibility.
That’s a reminder of the another UCI rule. In summary, Contador has to produce evidence to comfortably satisfy the hearing panel if he wants any reduction in the ban. Note this isn’t a question of “the balance of probability” or even plain old satisfaction but “comfortable satisfaction” which implies that everyone hearing the case has to be agreed that Contador has presented evidence that comfortable points to one cause and not the most plausible scenario. In the absence of such comfort the rules are black and white: a two year ban.
We should all be in favour of due process. There’s no point rushing something like this. But I can’t help feel we’ve seen the opposite, a series of deliberate delays. Rather than expediting this important case, we’re now at the point where the Tour de France will revisit Pau in July and there’s still no resolution.
There are sophisticated arguments here over strict liability, and past precedents like Rory Sutherland, table tennis player Dimitrij Ovcharov and more. So it can take time to build a case and if there’s any good here it is that this could lead to the matter of strict liability and contamination being settled for good, we’ll no longer see such variability, from Fuyu Li to Contador.
Word of caution
But for all the delays here note that if Contador and his entourage are found to have played for time so he can rack up more wins, earn more money and bank more prizes, all whilst proving incapable of showing he ingested contaminated meat then the CAS may well take a very dim view.
This case should have been on the priority list of UCI but instead they’re busy risking riders by banning race radios and what have you. I will digress a little and mention that UCI is no better than FIFA when it comes to administrating the sport. There are incompetent bureaucrats making important decisions. I’m not claiming that only past riders can manage the sport but the current predicament of UCI is hopeless.
The application of strict liability by the UCI was an “accident” waiting to happen. With respect to the law, as far as the application of reasonable doubt goes in this case there is very little difference between “i went to China” and “I ate a steak”.
I think that everyone here can accept that the concentration levels of clenbuterol that were found do not in isolation suggest any element of clear performance enhancement. So, the legal argument then becomes one of not proving contamination, but proving a transfusion. Can this be done?
Personally, if it could and/or there was proof, this would have played out a lot faster than it has. CAS has gone from promising a hearing/decision before the TdF, to now delaying it until after. I think they are therefore very aware of their own legal position, and the implications of preventing AC from riding the 2011 TdF….
Thank you for posting. Very interesting and full of insight. However, maybe you can clarify who has asked for the postponing of the hearing? Contador, UCI, CAS? Different medias report differently.
An additional question/comment. Lots of people incl. experts, fans and commentators have strong opinions on RFEC clearing Contador. Saying it was predictable and that RFEC is more or less corrupt or acting to protect Contador. I have no idea if that is actually correct. But I do have a question: Have any of these actually read the 30 pages decision and background from RFEC?
I have only managed to find one guy commenting the RFEC decision after having read the full 30 pages. And that is a Danish professor, chairman of the Danish anti doping agency. His judgement is that the RFEC has delivered a work of very high quality. He is not ruling out that CAS might judge differently, but he is very clear that the decision of RFEC is very well justified from a legal point of view. I think this is an important aspect and very overlooked. Maybe I have missed something…
Very good post. Thanks for quoting the rule, of which I think one thing must be highlighted:
What the panel must be comfortably satisfied with is with the establishment of “the absence of an intent”, supported by evidence. Not a great rule, but it’s the one we have. It reminds me of the old jesuitic “argument”: “the absence of the proof is not the proof of the absence” (which I guess Donald Rumsfeld would have adhered to in the run-up to the Iraq war concerning WMD). I mean, now on earth can you prove an “absence of intent”? (I guess the data included in Contador’s biologic passport is important. It would be interesting to know if his hematologic parameters changed inexplicably in Pau, or not).
It’s all going to boil down to the sheer subjective appreciation of the panel.
While this may not be entirely applicable here, some of the later delays may be attributable to the attorneys involved, and not the parties. I have found that the attorneys thrive in working under pressure, and always wait to make filings at the last moments. Whether they are able to bill additional hours, are hoping to discover more evidence/weave a more solid story, are servicing other clients, or are merely procrastinators/adrenaline junkies, I can’t say, but this “wait til the end” behavior has been applicable across the board in my experiences with corporate litigation.
Also, while the process is adversarial by definition, it is really the parties that are adversaries; the attorneys generally have a cordial, courteous, cooperative relationship. Requests for extensions are more often granted than denied. You never know when you are going to need a favor in return.
Great story and comments. It helps gain some perspective on such a lengthy issue.
However, I feel that I must rant a little. I do wonder what the other riders think? If the CAS overrules the verdict in August, isn’t AC short changing other riders in the peloton today? Is he not stealing from them if found guilty? Is the so called “brotherhood” of the pro peloton so strong that the riders can’t enforce internally? Where is the CPA in all of this?
24th of August Contador is informed of a positive test but nothing happens until this is leaked to a German TV station on 29th August ? What were the UCI doing in this time ? Hoping it would all go away ? Trying to find a way to make it all go away ?
Who investigates the UCI ?
Love Dave’s question … “Who investigates the UCI?”
The actions of the UCI, and the actions of the peloton, appear consistent with organizations that have been complicit in rule-breaking. The UCI is an organization that benefits from the popularity of the sport it governs, and this conflicts with its role in testing for PED’s; fast cyclists, performing at super-human levels, captivates and audience (and hence, sponsors), whereas delegitimizing the outcomes of past events will only reduce interest in the sport. The UCI seems to have struck a bargain with the peloton, that PED use will be allowed to a limited extent, and that infractions that will damage the popularity of the sport (and everybody’s paychecks) will not be uncovered. If this means allowing PED use, so be it.
For the riders, it appears that those in the peloton agree with the argument that riding in the bottom-tier of a sport with high-performing PED users is better than doing better in a sport that is clean. It seems that there is a threshold of performance without PED’s that one can reach and be granted access to the group that is supported by the shadow organization of doctors, pharmaceutical purchasers, smugglers, etc., so the hope of being granted access to those who take greater risks, and receive greater rewards, would also help maintain secrecy from those more towards the bottom of the peloton.
I find it hard to believe that in the last 20 or so years there haven’t been some more outspoken athletes who rebel against the system above. I wonder why we don’t know their names — is it because of a threat of legal repercussions (either to the whistle-blower or the media outlet that would publish), or because no one cares.
Look,
the riders at the pro level have the means, ability and quite frankly, the responsibility to monitor what goes in their bodies. How foolish are we, as a public going to be, by always falling for the accidental ingestion cry. I have a tough time believing that the # of athletes who claim “accidental ingestion” as a defense is consistent with what you would find with the general public. If this is the case, then our food safety regulations are not only suspect, but worthless (I have a tough time believing this – given that overall, there are very few public health outbreaks in the Western world, with over 1 billion consumers of food each day).
So either you believe that most of us are walking around with loads of banned substances in our bodies due to a completely contaminated food supply, or you realize that these guys are lying.
And in terms of the substances at hand in nutritional supplements, I take no sympathy with these guys. They are getting paid to ride their bikes, the least they could do is investigate what they consume, especially given the resources available to them.
Ankush: certainly the repeated delays from the UCI have compounded problems. I doubt this will provoke FIFA-like calls for change though. For that perhaps the current US investigation could spark something:
beev: “So, the legal argument then becomes one of not proving contamination, but proving a transfusion”. Under the rules, it is one of proving you didn’t transfuse, that’s the whole point of Strict Liability, to comfortably satisfy everyone you could only have ingested the product by chance. In theory anyway, but I suspect we’ll see a halfway debate concerning probability.
ziggymund: the RFEC report is available on the internet. Read it and it calls for a sanction. It was finalised and signed off by the RFEC… then they meet the next week and he’s cleared. During the weekend the Spanish Prime Minister said there were no grounds to ban Contador, despite not actually reading the report. The UCI has deplored the political intervention.
T-R: if a delay is requested then its reasonable to meet it but for me it’s the earlier delays that are worrying, from August to February.
Kris: I doubt there’s one view. Some will want him to get clear, just in case they face the same problem, others stand to gain in wins if he’s banned. Rider unions and peloton solidarity have always struggled as riders are in direct competition.
Dave + Kathy: by the sounds of things, the UCI was exploring angles to make the story go away. WADA is now involved in the case so in this instance, they are watching affairs closely. That’s reassuring.
Tony Hoffman: few riders speak out and when they do, they get buried. Every whistleblower, from Bassons to Simeoni to Jaksche and now Landis and Hamilton gets attacked. For sure some of these guys are struggling with their image but nobody is ready to listen and see if the facts corroborate with others, the instinct is to dismiss them.
ColoradoGoat: who knows? Even a rider on the most sophisticated doping program can make a mistake, for example Landis admits to blood doping when he “won” the Tour… but says he can’t work out where the testosterone came from. But given the European food traceability scheme, I’ve pointed out before (http://inrng.com/?p=517) that it’s actually very straightforward to trace every cut of meat from the contaminated cow, from the bits that go into dog food to the prime fillet, everything is recorded.
Colorado Goat: I think you’re pretty right. And I also think Contador was probably “monitoring” himself regularly, with the means at his disposal in order to be sure that he was OK for racing (or in order to be sure he wouldn’t get caught in the controls, take the interpretation you prefer). But the rider cannot be sure if and when the labs are going to come up with a new, more detailed analysis technique. Actually, it’s often when a sudden, unexpected improvement takes place in analysis that we have en masse positives, like we had with pemoline in 1976, with methylphenidate in 1982, or with CERA in 2008.
If you believe that riders will always take everything that enhances their performance if they are sure it will not lead them to the grave or to a positive control, then you reckon that what they must really want is not exactly either completely free doping or absolutely clean cycling, but predictability in the controls, so that by testing themselves beforehand, they can make sure nothing is going to happen.
As for who investigates the UCI, the current issues at FIFA seem to have prompted the Swiss to threaten to move sports organisations such as the UCI and FIFA into a different area of regulation and which entails far stricter controls and regulation. It maybe that the fallout of the US Postal investigation means the Swiss will be forced to act on this. I imagine that there would even be the possibility of bringing fraud/corruption charges against individual, if not the UCI.
inrng – no, but you can’t choose which aspects of strict liability apply if the whole precedent is being challenged.
colorado goat – eaten any cucumbers lately? the truth is, the public do not know the provenance of 95%+ of what they eat, and there is a rich history of poor food standards worldwide.
So, i maintain, CAS will have to do their best to prove a transfusion. I doubt they can prove it, but they will throw an awful lot of (plasticised) dirt in trying to do so, and consequently leave a degree of suspicion over AC that will endure….
@Beev:
As I stated before, there is still a dearth of overall food contamination outbreaks in the modern, Western / developed world given the number of consumers of food each day. Yes – I understand there are risks with cucumbers in Germany right now, but that does not negate the fact that the likelihood of accidental ingestion of banned, PED’s in the food consumed daily is quite low. Low enough that the accidental ingestion claim either is a lie, or you were careless in a non-developed China.
I have no sympathy if a rider trains in Mexico or China (as two examples), and they, for reasons of idiocy, eat the local food where use of suspect livestock practices and agricultural practices increases the risk of accidental contamination.
@Bundle:
I completely agree with you. Which is why some of the more cavalier practices of the US Postal team in the late 90’s/eatly 00’s are not so outlandish. When no test was really available for what they were using, and given the lengths USPS and Team Lance went towards getting exotic PED’s, it makes more sense that they would be almost arrogantly flaunting it within the team.
colorado goat. i completely appreciate what you are saying, so perhaps consider this on the statistics of it. such accidental contamination (without a trip to china etc) would be a very rare event – yes. how many such trace contaminations have been found by labs? I’m aware of one. i make that fit the “rare” test.
i’m not making any claim or support for AC here. that is not my beef (sorry). it’s just that i am yet to encounter any athlete that has been unfairly sanctioned of an offence that has then benefited from said sanction – and that is an inequality that should be addressed….