Matt Rendell reviews some of the highlights of the judgment, published on Monday 6th February by the Court of Arbitration for Sport, banning Alberto Contador for two years:
There's a paradox at the heart of cycling, one every fan understands: in order to compete, even rivals have to co-operate, by taking it in turns to occupy the load-bearing position at the front of the group.
Strange to say something of the same paradox exists in the anti-doping laws that Alberto Contador contravened on 21 July 2010. Accused and accusers must co-operate in the construction of the likeliest scenario.
Contador, the accused, was saddled with the burden of proving (whatever that means), on the balance of probability (whatever that means), that the infinitesimally small trace of clenbuterol found in his urine that day got there through 'no significant fault or negligence' (see paragraph 241b) of his.
Although his accusers – cycling's world governing body, the UCI; and WADA, the World Anti-Doping Agency – had to demonstrate no intent, fault, negligence or knowing use on Contador's part to achieve a conviction, they were obliged to contest his version of events; not just to pour scorn on the famous contaminated meat hypothesis but to suggest alternative scenarios of their own and back them up with evidence. Just not quite as much evidence as Contador, since (paragraph 252) 'it must be avoided that the prerequisite for contesting an allegation result in a reversal of the burden of proof.'
However strict 'Strict Liability' is, the court still takes into account whether or not the contesting party has fulfilled the obligations of cooperation (paragraph 257): something to do with the traditions of the Swiss legal system.
Which, ladies and gentleman, is largely why an apparently open-and-shut case in which none of the parties disputed the presence of the illegal substance in Contador's body could end up before the Court for Arbitration for Sport (CAS) and last nine months in proceedings before the final hearing, which was postponed twice.
So while Contador stuck to his 'veal solomillo and clenbuterol' story (€32 a kilo, according to paragraph 274 – how the other half eat, eh?), the UCI and WADA worked on their hypothesis that (paragraph 336) 'Mr Contador undertook a transfusion of red blood cells on 20 July 2010 and then – in order to preserve a natural blood profile and mask the use of such transfusion, which can be detected through the Athlete's Biological Passport ... - the next day (21 July 2010) injected plasma (to hide the variation of haemoglobin values) and erythropoiesis stimulation' – they mean EPO – '(to hide the variation of reticulocytes) into his system.'
They suggest it was 'the transfusion of plasma of 21 July 2010 which would have contaminated the sample with clenbuterol ...'
It's a scientifically respectable and intellectually satisfying explanation, supported by evidence from WADA's expert witness Michael Ashenden – one of the creators of the Biological Passport and one of the most public anti-doping scientists around – that 'Contador's reticulocyte values (i.e., the population of young, recently-born red cells in his blood) ... during the 2010 Tour de France were atypical, and opposite to what would have been expected' (paragraph 132, on page 25). Later we read 'They [were] also significantly higher than the values measured during his previous victories at the Tour de France (2007 and 2009), the 2008 Vuelta and the 2008 Giro, while they should be comparable' (paragraph 351a).
Ditto his haemoglobin concentration (paragraph 351b). 'Such values are not consistent with Mr Contador's normal values and are difficult to reconcile with physiological variations. As such they provide indications which would be consistent with blood doping' (paragraph 132, on page 25).
Yet, after 18 pages of dense argument on the subject of the blood transfusion theory, the tribunal concluded that is was ‘very unlikely to have occurred’ (paragraph 454).
WADA's lawyers were unhappy that their expert (Ashenden) wasn't allowed a final session of questioning on the subject of blood bags. They even leaked their anger to the press. Perhaps he would have convinced the judges. The fact remains, even without the challenge from Contador's expert haematologist, the panel of judges observed that 'neither UCI nor WADA were confident enough to bring a doping charge against the Athlete based directly on their allegation of a blood transfusion' (paragraph 453) and the blood-transfusion hypothesis was thrown out of court. But that was only after it was blamed for the ridiculous duration of the procedure: the judges accepted Contador's claim that his requests for extension were a 'direction consequence of having to address and answer ... complex submissions on the blood transfusion theory ...' (paragraph 498).
Co-operation, to go back, is too strong a word: the judgment paints a picture of jealous, feuding institutions taking umbrage with each other, trading insults and clamming up in narcissistic huffs.
The Spanish Cycling Federation asks the UCI and WADA for help with technical and scientific matters. WADA says it won't deal with the demand because it's not under its jurisdiction. The UCI says it will but it can't say when. So the Spaniards consider solely the evidence presented by Contador and acquit him (paragraph 22-28).
The UCI and WADA respond by appealing to the Court for Arbitration for Sport. The UCI is allowed 54 days from the receipt of the complete case file from the Spanish Cycling Federation to file its appeal brief, so Contador demands the same: 54 days from the receipt of the appeal briefs to file his answer (paragraph 35). Pages and pages follow of infantile, tit-for-tat scheduling requests and objections.
No mention is made of Hans Joachim Seppelt, a journalist with the German TV station ARD whose investigations led to the news of Contador's positive going public, although eight lines of this section discuss the communications between the UCI and Contador, and their controversial encounter on 26 August 2010, which is surrounded by (wholly unsubstantiated) rumours of improper collusion – to wit, that they collectively cooked up the steak story during a series of phone conversations and at that fateful meeting.
No, says the judgment (paragraph 13): 'The meeting of 26 August 2010 was arranged in order to deliver Mr Contador the official notification of the adverse analytical finding, the full documentation package of the A Sample analysis ... the notification of the provisional suspension and also to explain the management process of the case ...'
But the last line will comfort the conspiracy theorists: 'During this meeting, the Athlete explained that the origin of the Prohibited Substance must have been contaminated meat.'
If any suspicious collusion took place that day the fellow feeling had dissolved by the time the parties reached the tribunal. In paragraph 480 Alberto accuses his courtroom adversaries of 'preposterous speculation,' and of taking a 'repulsive approach' to his case.
Emotional stuff, and no surprisingly: his 2010 Tour win, his 2011 Giro win, his reputation, not to mention a fine of €2.485 million and 70 per cent of 'the variable part of his image contract' (whatever that means) are at stake.
But there's plenty of absurdity in the judgment's 98 pages, and plenty of specious legal argument, if you know where to look.
The Spanish Cycling Federation gets positively theological on the subject of Contador’s rest-day meal. They argue that since the only item of evidence - the meat - has disappeared it is obviously impossible for Contador to present it in his defence. This being the case it cannot reasonably be demanded of Contador by the international organisations. This being the case not only is the onus probando [the burden of proof] reversed but the proof itself becomes a probatio diabolica - a legal requirement to achieve an impossible proof (paragraph 232).
The tribunal more or less tells them to get real (paragraph 258).
Then on page 86 Contador does a little potting-shed science: 'The Athlete ... conducted a test of his own, to use as evidence in these proceedings, and on such basis filed a report concluding that he produced an average daily volume of urine to 2.115 Litres.'
After all that the tribunal ruled that the test 'was not carried out in a controlled environment [and] finds that an average urine production of 2.115 L is rather at the high end of the possible range ... '
That's what I call arcane knowledge.
And then, there's Contador's legal team, who tie themselves up in fruitless parallel arguments that end up backfiring.
They suggest the brother (long dead) of the farmer who probably supplied the suspect veal was once sanctioned for the illegal use of clenbuterol, albeit in 1996, before the implementation of EU regulations and severe sanctions in the Spanish criminal code for the use of beta-agonists to fatten cattle. They suggest it should be concluded by association that this family history of clenbuterol abuse is of the utmost importance to Contador’s case.
Ah, retort WADA, at least 12 former or current team-mates of Mr Contador have been banned for doping. By the same principle of association the tainted environment in which the Athlete lives enhances the likelihood that the source of the clenbuterol is doping rather than a contaminated piece of meat (paragraphs 341 and 342).
The judges reject this line of reasoning (paragraph 346): 'Being in "bad company" is no more or less of an indication of illicit behaviour for an athlete than family ties are between cattle farmers ... The Panel does not ignore the fact that Mr Contador himself used a similar argument in putting forwards several investigations of the Spanish police regarding meat contamination cases in order to make it more likely that the farm of Mr Lucio Carabias illegally fattened its cattle' (paragraphs 346 and 347).
In a bizarre circular argument, Contador's representatives argue that 'To examine only the future likelihood of meat being contaminated with clenbuterol and being eaten by an athlete who is then tested would produce a wholly invalid result, because it would not take into account the evidence that the athlete did in fact eat meat and was tested and did test positive for clenbuterol.'
In other words, Contador's contention is self-corroborating; it is true because it is true.
'Put differently,' his lawyers continue, 'the fact that someone is unlikely to be struck by lightning is of no relevance when a person is found dead in a field with a scorch mark from head to toe.' Whatever the philosophical niceties, did they really think this line of argument was going to advance their case?
A lesson, many lessons, in the mysteries of the legal mindset.
What did we learn from the judgement? Read part II of Matt Rendell's analysis here
Read the full CAS ruling here
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