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Contador a free man, but at what cost?

Having been leaked 24 hours beforehand, it came as no surprise to hear yesterday that the Spanish national cycling federation (RFEC) had reversed their initial recommendation of a one-year ban for the three-time Tour de France winner Alberto Contador.

Having considered all the evidence relating to his trace-positive test for the banned drug clenbuterol, they determined the 28-year old had no case to answer. Contador is consequently free to race for now. He took the start at the Tour of Algarve this morning, making his debut for his new Saxo Bank-Sungard team.

In a statement explaining their decision to overturn their earlier, provisional judgement, RFEC said:

The minimal amount detected could not presume an improvement in sporting performance. This brings us to the conclusion that with a high degree of probability the positive detected was a consequence of the consumption of contaminated meat, an act which cannot be assumed or considered as negligent conduct.

Is RFEC’s decision correct?

The decision appears to fly in the face of article 296 of the UCI code which states (my emphasis):

If the Rider establishes in an individual case that he bears No Fault or Negligence, the otherwise applicable period of Ineligibility shall be eliminated. When a Prohibited Substance or its Markers or Metabolites is detected in a Rider’s Sample as referred to in article 21.1 (presence of a Prohibited Substance), the Rider must also establish how the Prohibited Substance entered his system in order to have the period of Ineligibility eliminated. In the event this article is applied and the period of Ineligibility otherwise applicable is eliminated, the anti-doping rule violation shall not be considered a violation for the limited purpose of determining the period of Ineligibility for multiple violations under articles 306 to 312.

In other words, a rider is considered guilty until he can prove himself innocent – the principle of ‘strict liability’. It appears that, despite Contador’s failure to substantiate his theory that he had eaten a contaminated steak, RFEC have decided that explanation constitutes a sufficient defence. I’m not saying Contador’s claim is necessarily untrue, but there is a yawning chasm between having a possible explanation and having a credible one. The Spaniard’s defence is the former; it most certainly is not the latter.

Should Contador be unconditionally exonerated? American swimmer Jessica Hardy was able to present a plausible case pointing to accidental contamination from a food supplement, but she nonetheless served a one-year ban. And table tennis player, Dmitrij Ovtcharov escaped sanction when he tested positive while competing in China, where clenbuterol use is high. Neither case provides a convincing precedent to support RFEC’s decision here.

Quite simply, the rules required Contador to prove his innocence. He has not come close to doing so. So how can RFEC’s extraordinary decision be in any way justifiable?

Is the current system fatally flawed?

Flawed, certainly. Fatally? Debatable. There are two key questions here, both of which are worthy of consideration.

Should there be a minimum limit for clenbuterol – below which any trace presence is deemed non-performance enhancing – to allow for cases of accidental contamination? Arguably, yes. The ‘strict liability’ rule means that cyclists have to go to extraordinary lengths to ensure clean food supplies – it is why we no longer see riders accepting food or bidons from spectators – but it is still all too easy to take the wrong food supplement, or eat the wrong food in particular parts of the world.

As was the case with Jessica Hardy, just because a supplement does not list clenbuterol among its ingredients does not mean it is not present. Setting a minimum limit might mean the odd guilty doper slips through the net, but if that means innocent athletes do not have their reputations dragged through the mud, that may be a price worth paying.

And should national federations be allowed to adjudicate in anti-doping cases? This is the case in Spain where RFEC, even if their decisions are purely objective, are open to accusations of bias and conflicts of interest. But in other countries such as the US, all cases are passed straight to the relevant anti-doping body – in this case the US Anti-Doping Agency (USADA) – who can pass judgement without the taint of direct self-interest. Better still, why not have a global anti-doping tribunal under the auspices of the UCI or even WADA, which can be truly independent of all national interests?

As it stands, the anti-doping codes can, with some justification, be accused of being overly draconian, and national authorities such as RFEC are put in an impossible position where any ‘innocent’ verdict automatically carries a whiff of corruption with it, which does no one concerned any favours at all. It is a far from ideal situation.

Is Contador now damaged goods?

I have said before that I believe Contador to be guilty – I still do – but I cannot help but feel sorry for him. If he is innocent, his reputation is now almost irreparably tarnished, a fact the man himself acknowledged:

The truth is the damage done to your image is irreparable, with all the stupidities that are said about you. When you haven’t done anything wrong and your conscience is super relaxed the only thing left is for them to recognise that you haven’t done anything.

He was also quick to point the finger at the rule-makers for bringing him to this point:

The fault is with the institutions that haven’t served their purpose and who haven’t been able to review a case like this. It’s been six months of sleepless nights, pulling your hair out — there are times when I cried.

However, the fact remains that, even if one does accept Contador’s contaminated steak story as true, he was incredibly stupid to have eaten meat of uncertain provenance during a race. No professional athlete should be taking risks like that, especially when they know how strict the anti-doping rules are. Even if he is innocent, Contador should accept that it is his own fault he ended up in this mess – whether innocently or otherwise – rather than point the finger of blame everywhere else.

Unsurprisingly, Contador’s Saxo Bank-Sungard team – and in particular owner Bjarne Riis, hardly a paragon of virtue himself – have closed ranks around their most valuable asset. In a statement released yesterday by the team, Riis said:

This decision is indeed proof that the relevant authorities do not find grounds for believing that Alberto Contador has committed any intentional doping offence. So I’m obviously happy on behalf of Alberto and the team.

We’re still a team that strongly condemn all kind of cheating, including doping. But we will at all times also be a fair team. It is of great importance that we don’t equate conscious cheating and an accidental intake of a banned substance.

Even if that goes against what the rules of the sport dictate is the requisite punishment in such cases.

There can be no doubt, though, that Contador is fortunate to be the most highly regarded cyclist of his generation. If he was plain old Albert Smith rather than Alberto Contador, and did not have the benefit of expensive legal counsel and the influential backing of political heavyweights including the Spanish Prime Minister, would he be free to race today? I suspect not.

Contador will be accepted – if not exactly welcomed – back into the peloton. Whether he will be greeted as warmly by fans is another matter.

Media reaction

Interestingly, the Spanish media have been less than overwhelming in their support for Contador. In response to comments by UCI president Pat McQuaid, Spain’s biggest-selling sports newspaper Marca said on Sunday (before his suspension was lifted):

[McQuaid’s comments are] a blow to the heart for a country that owes a large part of its recent joy to the success of its athletes. This does not mean that we can doubt the successes of our athletes. But the truth is that McQuaid’s comments contain more truth than we perhaps like to hear. We are destroying all the good work that Spanish sport has done for the international image of this country.

Opinion from international journalists has been even more scathing. Italy’s La Gazzetta dello Sport accused Spain of protectionism, saying:

[Spain is] always looking at some foreign plot against the golden era of Spanish sport. Spain, which cannot get rid of Eufemiano Fuentes, has protected at all costs a guilty Alejandro Valverde, and now it embraces Alberto Contador.

L’Équipe‘s Damien Ressiot was equally damning:

I’ve been dealing with doping in different sports for ten years and I’ve never been faced with such political interference in a sporting affair, at least in the major European countries that have signed an agreement and recognize the World Anti-Doping Code.

I find it absolutely unbelievable and outrageous that the prime minister himself is allowed to enter the fray by requesting that Contador is cleared. I think Spain has a real problem with doping.

And USADA chief executive Travis Tygart, speaking to the New York Times prior to the decision, said:

It’s a very, very unique set of facts that would justify someone being completely cleared, so unique that we haven’t seen it at all, at least here in the United States. If there’s truly been a flip-flop, as reported, it appears to be a classic example of the fox protecting the henhouse. It would look like they are protecting a national hero.

British cycling journalists have focussed more on the failings of both RFEC and the UCI to act transparently in their handling of the case. Journalist and author William Fotheringham said:

Whatever the arguments over clenbuterol levels and contaminated steaks, the Contador ruling underlines one thing above all. National governing bodies should not be placed in a position where they have to rule on positive drug tests involving their star riders, any more than the world governing body. Between them the UCI and RFEC have taken four and a half months to arrive at no ruling at all.

If a ruling is taken by a body that has an economic interest in the outcome of doping cases, be it the UCI or a national governing body, accusations of conflict of interest can always be made. To avoid that, the only solution is an independent panel to rule on anti-doping cases involving riders in the higher echelon of teams.

And fellow cycling journalist and author Richard Moore concluded:

Whether [this case] has been ‘resolved’ is doubtful. It will drag on. But that almost doesn’t matter. The stink left by the irregularities in the way the Contador case has been handled remains, now more pungent than ever.

What happens now?

This story is far from over. RFEC’s decision represents a significant challenge to both the UCI and WADA’s anti-doping codes which sets a dangerous precedent for future cases, as it refutes the ‘strict liability’ rule which underpins all doping cases. If the burden of proof is transferred from the athletes to the authorities, it is difficult to see how any remotely marginal positive can be successfully prosecuted without the presence of a smoking gun (or, at least, a syringe).

The UCI will surely have to lodge an appeal with the Court of Arbitration for Sport (CAS). Upon receipt of RFEC’s documentation, they have 30 days in which to petition for a hearing. Beyond that, WADA has a further 21 days in which to file an appeal themselves.

Pat McQuaid stated that the UCI need to fully review the documentation before commenting further, but said:

It’s up to the athlete to prove that whatever product got into his system – in this case clenbuterol – got in without his knowledge. In this case, my understanding is that Contador has not proven that, but until such time as we see the full dossier we can’t really comment on it.

He expressed his hope that any CAS hearing would be completed before the Tour de France in July:

I would hope and be fairly confident that it could all be sorted out before the Tour de France, that we can go to CAS and that CAS will understand that we need this one relatively quickly. If within the 30 days we decide to go to CAS, we’ll ask to do it before the Tour de France.

And he was openly critical of the pressure applied by Spanish politicians:

It’s up to sport to police itself. I don’t think it should be interfered with by politicians who don’t know the full facts of the cases and then make statements that are purely political statements. I think it [political pressure] is unwarranted and doesn’t help. It doesn’t help the image of Spain either. It showed that they’re biased in supporting their own regardless of what the facts of the case might be.

CAS secretary-general Matthieu Reeb indicated today that it would certainly be possible to expedite any appeal before the start of the Tour, but that it could easily drag on beyond that for a variety of reasons.

Critically, RFEC’s decision not to suspend Contador has important consequences. Firstly, Contador retains his 2010 Tour title and is free to continue racing even if the UCI or WADA lodge an appeal. The burden of proof now passes from Contador to the authorities. And, of course, the validity of the anti-doping code’s ‘strict liability’ rule is now vulnerable and open to future legal challenge.

Contador himself said:

It’s important that the UCI and WADA analyse all the documentation as well as look at the resolution, which is a decision based on fairness and a decision based on important legal foundation. It’s impossible to have more proof in my case.

This struck me as an interesting claim to make, given that it seems impossible for him to have had less proof in his defence.

Contador himself is relatively unaffected. He claims not to be in the same shape he was this time last year, but in reality his calendar has hardly been disrupted. His provisional suspension effectively came after he had finished racing for 2010, and the Tour of Algarve would probably have been his first race of 2011 as he builds up to the Giro d’Italia in May.

This has been a sorry affair from start to finish, which has done nothing to drag cycling’s reputation out of the mire. Contador has been treated differently because of his status, and he has been let off without any clear justification. The rules may not be perfect and in need of revision, but the ham-fisted way in which first the UCI (by delaying the announcement of Contador’s initial suspension) and then RFEC have handled the case has left a lot to be desired. Either a guilty doper has walked free (at least for now), or an innocent man has had his reputation shredded.

I want to see doping in cycling – in all sports – policed as rigorously as possible. But surely there has to be a better way than this?

My previous posts on the ‘Conta-dope’ scandal

Conta-dope suspension adds another chapter to Tour’s tale of woe

Is Contador’s doping suspension much ado about (almost) nothing?

Experts suggest Contador’s ‘contaminated beef’ defence may be a load of bull

Whatever the truth, mud will stick to Contador and the UCI

The beginning of the end for Contador?

Contador’s one-year ban just the start of a long, winding road

Contador makes aggressive first move in response to proposed ban

Is Contador about to be cleared? Show me the evidence, please

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About Tim
Father of three. Bit of a geek. That's all, folks.

6 Responses to Contador a free man, but at what cost?

  1. This is a farcical affair, which does nothing but further tarnish the sport and erode the faith of the fans.

    I’m a hardliner on drugs, as I like to believe it is possible for the sport to be clean (sometime in the remote future), so I would like to see a minimum ban of two years for all doping offences, and more for the serious ones. I also think that national federations should be removed from the process altogether. Doping is more acceptable in some countries than in others, and we can’t have a system where a rider’s nationality determines his or her sentence.

    And I hate to think what media circus would descend if CAS gives Contador a ban during or just after the TDF….

    • Tim says:

      The comments from CAS’s secretary-general suggest it would not be too difficult for the process to extend into July, which would be disastrous. All it would take would be for one side (most likely Contador’s) to put in a request for an extension to gather more expert input, say, and an already tight timeline becomes unmanageable.

      Agree 100% that rulings should be taken out of the hands of the national federations – in some countries (e.g. Spain) it’s like asking turkeys to vote for Christmas! Nominating each country’s anti-doping agency if they have one (like the US) or the Olympic Committee (like Italy) would be a forward step. But I would still like to see a global body appointed ideally under the auspices of WADA to deal with doping cases in all sports. Of course, the issue then is how you fund it, but it has to be the best way to avoid national interest becoming an overriding influence.

      I’m all for a mandatory two-year minimum ban in ALL cases, with one proviso. Although there is an element of risk to it, I think there should be a minimum limit for all drugs, below which a detected concentration can be deemed non-performance enhancing or have a high potential for being caused by accidental intake. I would marry this with a “three strikes and out” totting-up process similar to the whereabouts system (which is what led to Christine Ohurougu’s ban) – i.e. get caught with a trace-positive once or twice and you’re excused with a slap on the wrist, but the third time is assumed to be a true positive. And any athlete who gets one strike should expect to be tested more regularly than others.

      Hmm, I think there’s a blog post in this. Maybe over the weekend …

      • Really like the three strikes idea for the borderline cases. Whatever the case, reform is clearly needed!

        A journalist in one of the papers said that big scandals in cycling had a habit of breaking out just before or during the grand tours. I guess that means this is just the build-up, in which case, God help us….

  2. Tim says:

    Ah, the F1 approach to PR. Any media coverage – even if it’s a farcical scandal which makes everyone look silly – is better than no coverage … 😦

  3. Pingback: No surprise as UCI lodges CAS appeal in Contador case « The armchair sports fan

  4. Pingback: WADA joins UCI in two-pronged attack against Contador « The armchair sports fan

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