Cadel Evans (reigning champion Tour de France) commented that the 2 year doping ban for Alberto Contador (the 29-year-old spanish cyclist) shows the sport is at the forefront in the battle and the sport was doing all it could to root out doping. But, Eddy Merckx wonders if someone is trying to 'kill cycling' ?
After numerous unexplained delays, The Court of Arbitration of Sport (CAS) verdict in Lausanne, was delivered 566 days after Contador cycled triumphantly along the Champs d'Elysees in Paris. The CAS suspended the three-time Tour champion after rejecting his claim that his positive test for clenbuterol was caused by eating contaminated meat on a 2010 Tour rest day. To avoid a doping ban, Contador needed to prove how the anabolic drug entered his body and convince the arbitrators he was not to blame.
Contador is one of only five cyclists to win the three Grand Tours - the Tour de France (TDF), the Giro and the Vuelta. He also won the TDF in 2007 and 2009. He becomes only the second TDF champion to be disqualified and stripped of victory for doping. The first was Floyd Landis (american cyclist), who lost his 2006 title after testing positive for testosterone.
Briefly about The Court of Arbitration of Sport (CAS):
CAS is a body of arbitration that question disputes over the sport. It was originally created by the President of the International Olympic Committee, Juan Antonio Samaranch, to settle disputes during the Olympic Games in 1984. Its headquarters are in Lausanne (Switzerland), there are other courts in New York and Sydney and languages used in the process are French and English, but it is used to that agreed by the parties.
The number of arbitrators participating in a process of CAS is 1 or 3, elected all of them among a total of 200 that make up the list of members of the Tribunal. The judgement is issued by a majority of the members of the Tribunal. In the absence of this majority, it is only the President who has the power to do so.
In the process of Alberto Contador, three have been appointed arbitrators. One for the applicant (UCI and WADA); another defendant (accountant); and a third party chosen by the Court, as a mediator.
Their choice by Alberto Contador: Ulrich Haas (german professor at the University of Zurich, was a member of the German Anti-Doping Commission). Chosen by the UCI and WADA: Quentin Byrne Sutton (a swiss lawyer of british origin). The chosen by CAS: Efraim Barak.
CAS has issued an announcement:
'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.
In its ruling, CAS said 'unlike certain other countries, notably outside Europe, Spain is not known to have a contamination problem with clenbuterol in meat. Furthermore, no other cases of athletes having tested positive to clenbuterol allegedly in connection with the consumption of Spanish meat are known. Therefore, and considering that none of the conditions for eliminating or reducing the period of ineligibility were met, on the basis of the UCI Anti-Doping Regulations, the Panel decided to sanction Alberto Contador with a 2-year period of ineligibility.'
So, athletes who eat meat in Europe shouldn't overly worry that they might be contaminated and test positive as happened to some competing in other countries. It means, they need not become vegetarian in Europe!?
Chronology of the case:
July 21: Contador undergoes a doping test on the Tour de France's second rest day in Pau
July 25: He wins the Tour (TDF) for the 3. time with a 39-second advantage over Andy Schleck
August 3: He signs a two-year contract with Saxo Bank team
August 23: The Cologne laboratory hands over to the International Cycling Union (UCI) a positive result for the banned anabolic agent clenbuterol in Contador's A sample
August 24: He is provisionally suspended by the UCI
August 26: He asks for his B sample to be tested
September 8: B sample is also positive for clenbuterol. The UCI later said a 'very small concentration' of clenbuterol was found in Contador's urine sample
September 30: He blames the failed test on contaminated meat
January 26: The spanish federation proposes a one-year ban for Contador
February 15: The spanish federation clears Contador of any wrongdoing
February 16: He starts his season at the Tour of Algarve in Portugal
March 24: The UCI appeal to the CAS against the spanish federation's decision to clear Contador
March 29: The World Anti-Doping Agency (WADA) also appeals to the CAS
May 20: The CAS say the case will be heard from June 6-8
May 26: The hearing is postponed after a request by Contador's defence team
May 29: He wins the Giro d'Italia for the 2. time
May 31: The CAS say its hearing will be held from August 1-3, meaning that he is free to ride in the TDF
July 24: Contador finishes 5. overall in the TDF after apparently using up too much energy in his Giro triumph
July 26: The hearing is again postponed at WADA's request
November 21-24: Contador case is heard by the CAS arbitration panel in Lausanne. CAS say they will need 6 - 8 weeks to reach a verdict.
January 16: CAS say they will not give a verdict before the week of January 30
February 6: The CAS banned Alberto Contador for a two year ban and the period of ineligibility starts retroactively (to the date of positive test for clenbuterol - July 21, 2010), meaning that the suspension of Alberto Contador will end on August 5th 2012. He has been stripped of his 2010 victories in both the Tour and the Giro. Consequently, Andy Schleck has been named the official winner of the 2010 Tour and Michele Scarponi gains the final pink jersey of the 2010 Giro. He will also miss this year's Giro d'Italia and Tour de France and the London Olympics, but he would be eligible to ride in the Spanish Vuelta.
Contador has 30 days to appeal. If he appeals to the Swiss Federal Tribunal, the court can decide the legal process was abused but would not examine the merits of the evidence. A federal appeal process typically takes several months, though the court rarely overrules CAS.
Resolutions of the CAS are actionable in the Swiss ordinary courts by a defect of form or competence of the Court, not by the merits of the judgment. This means that it is possible to apply to the Swiss Federal Court, but the appeal will have no effect ellipses on the punishment, unless specify you so the Court.
CAS is an arbitral Tribunal, no jurisdiction. Therefore, there superior that recourse court. It puts an end to arbitration and all that fits is to contest before the ordinary courts. In addition, counter could not resort award, which is final and binding on the parties. Only defects of form such as 'a possible lack of impartiality of arbitrators or have violated fundamental rights.
Contador could also face financial pain at world sport's highest court of appeal: CAS said it would rule later on a request by the UCI to fine him $3.25 million.
It was a devilishly difficult case (case of 4,000 pages) that dragged on for long and nobody had no idea what was going to happen.. Now this is an end to long running saga, although the case had revealed many of the sport's problems in dealing with doping cases.
It's absolutely necessary that the decision come sooner, even though sports justice needs serenity and even though that case was extremely complex in world of sports law. This case remembers me like jailing Al Capone for tax evasion: Contador's accusers secured a conviction, but did the verdict miss the point?
How the banned performance-enhancing drug clenbuterol got in the Contador's urine? There was even discussion about how big a calf needs to be for a butcher to be able to cut a veal fillet weighing 7 pounds, and how many liters of urine Contador produces in a day? A long hearing process obviosly gave new meaning to the term 'glacial.'
All wanted from the CAS was clarity: 'Did he cheat by having a banned, performance-enhancing blood transfusion or was he telling the truth when he said that a veal fillet he ate at the Tour must have been contaminated by clenbuterol? The CAS ruled that both scenarios were 'possible' but also 'equally unlikely'. Or 'Contador might have eaten a food supplement that might have been contaminated with clenbuterol?' This, judges said, was a 'more likely' explanation for his positive test. What does it mean? Judges weren't saying that it was the likely explanation, only that it was less unlikely than the first two 'very unlikely' scenarios. To the decision lead a guess, and doesn't mean, necessarily, they made the wrong decision.
Cycling has done more than enough to show it's doing the right things when it comes to the fight against doping and it's time for other sports to replicate the fight against doping in sport. My opinion is that all sports must completely reject all forms of doping. Athletes are responsible for what comes into their bodies. They've been warned many times about the risks of taking supplements.
'Maybe' Contador's 2-year ban seemed a bit unfairly, but how would look some case with other athletes with far less money for defense on the court? On the other side of story, Contador will always be to his truly fans the innocent victim of a sports justice system that is tough because it puts the burden on athletes to prove how a drug got into their bodies.
Press release of The Court of Arbitration for Sport
Reactions to Contador's 2-year doping ban
Legal experts give opinions prior to CAS Contador anti-doping decision
Write a comment
Phil Gibbs (Saturday, 11 August 2012 16:35)
Ultimately the burden was on the athlete to show how the positive test arose and then that it was through no fault or no significant fault on the balance of probabilities. CAS found that both meat contamination and blood transfusion were unlikely but possible. More likely was supplement contamination. Contador had failed on burden and standard of proof. Supplement contamination does not escape negligent fault hence 2 year ban.
Jurica (Saturday, 11 August 2012 16:37)
The judgment has massive implications in international sports law. Athletes must be exonerated to the extent that they can prove with absolute certainty of innocence. In a criminal case is in favor of the defendants in doubt, but in sports law in doubt to the athlete who is on the outside can not wash away 100 percent? This is maybe tightening, because the entire burden of proof rests on the backs of the athletes. But, on other side it's not possible release each drug smuggler who claims he could not explain how some substance come, for example, in his luggage. One would be never convicted..
Ultimately, the debate is not so much over antidoping rules, but over the ample room for legal interpretation when it comes to their enforcement.
The CAS operates not on the usual presumption 'innocent until proven guilty' but rather puts the burden of proof on the athlete to prove his or her innocence.
Fermín Morales (law professor in the Universidad Autónoma de Barcelona and a leading expert on antidoping legislation) says:
1) Everyone agrees with the rules, but these don't say how they should be applied, unlike a regular court system.
2) Decisions [currently] are based on assumptions. Unless they include minimum judicial guarantees and clarity on how the rules work, everything will be subject to manipulation. As long as antidoping cases don't adhere to strict proof-based criteria, we can expect legal uncertainty and controversy. Finally, he don't think they'll be able to preserve a system based on the presumption of guilt.
3) Cases like Armstrong’s and Contador’s will eventually force a revamp of anti-doping legal procedures. But any reform will not be voluntary, but rather 'the result of a dispute over the jurisdiction of a case, between sporting bodies and regular courts.'
Howard Jacobs (US attorney who has made a name for himself defending athletes charged with doping) says he doesn't have a problem with athletes bearing the burden of proof; it's just that it has to be done on a fair way, and that is on a case by case basis.
Antonio Gallegos (of the Denver-based law firm Holland and Hart, who has defended athletes in anti-doping cases) comments:
1)The decision to impose a suspension of any length is backed by the rules
2)It would not surprise me if WADA and to some degree UCI put a lot on pressure on the Spanish federation to give Contador the full 2-year sanction because they've been adamant to show they have zero tolerance
Alfonso Velasco (a pharmacology professor in the Universidad de Valladolid and expert in anti-doping who just completed a review of clenbuterol as a performance enhancer) says that it was basically a homeopathic dose which could not have influenced his sporting performance and it's useless to improve performance, although it does increase muscular mass.