In the week of Lance Armstrong’s confession that he cheated his way to his seven Tour de France victories, there is one other cyclist worth mentioning: Alberto Contador, the Spaniard who won the 2007 and 2009 tours, and whose 2010 victory was removed due to a suspension for the use of performance enhancing drugs.
One of the drug tests submitted by Contador during the 2010 Tour revealed that he had an illegally high level of clenbuterol in his system. After he was suspended pending an investigation, the Royal Spanish Cycling Federation (RFEC) cleared Contador as they believed that he had most likely provided the positive test because he had eaten contaminated food.
The International Cycling Union (UCI) and the World Anti-Doping Authority (WADA) were not convinced, and took Contador’s case to the Court of Arbitration for Sport (CAS). They delivered their finding in February last year. Most of what follows comes directly from their Final Award, which can be read in full here. Lawyers for Contador, WADA and the UCI are all referenced where appropriate.
Paragraph 224, Mr Contador:
The importance and difficulty of the struggle against doping in sport has however brought about a qualification to…normal indispensable precepts of justice. That qualification is that once a strict liability doping offence is established by demonstrating no more than the presence of a prohibited substance in an athlete’s sample, the burden shifts onto the athlete to establish how the substance came into his body and that he bore no fault or negligence for its presence. In essence, the athlete must prove his innocence. This significant incursion into the rights of the accused is however justified by the need to protect sport and the difficulty faced by the regulatory authority to actively prove the method of ingestion and the athlete’s degree of fault.
193, The Court:
Where these Anti-Doping Rules place the burden of proof upon the License-Holder alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.
So, the Court’s job was to determine which of the ways in which the clenbuterol may have come to be in Contador’s system was “more probable”, regardless of reasonable doubt.
The Meat Contamination Scenario
327, The Court:
The Panel is satisfied that Mr Contador ate meat at the relevant time and that if the meat that he ate was contaminated with clenbuterol it is possible that this caused the presence of 50 pg/mL clenbuterol in a urine doping sample.
329, The Court:
As the parties agreed that it is possible that a contaminated piece of meat could cause an adverse analytical finding of 50 pg/mL of clenbuterol, the only remaining element (the “missing link”) is whether that specific piece of meat was contaminated with clenbuterol. The Panel is not prepared to conclude from a mere possibility that the meat could have been contaminated that an actual contamination occurred.
The Blood Transfusion Scenario
344. The Court:
No person in the “environment” of Mr Contador saw or alleged that Mr Contador underwent a blood transfusion. No person submitted that Mr Contador knew of their wrongdoings or that they acted in part or entirely in concert with each other. This is all the more surprising since the blood transfusion scenario implies that at least a group of people must have been involved (Athlete, donor of plasma, somebody harvesting the plasma, somebody storing the plasma and blood bags, somebody re-injecting the plasma and the blood, etc).
367, The Court:
The Panel comes to the conclusion that the Athlete’s blood parameters cannot establish a blood transfusion. The Panel understands that the Appellants do not want to prove per se that the Athlete underwent a blood transfusion but only argue that a blood transfusion is more likely to have caused the presence of clenbuterol than the meat contamination scenario.
Contador undertook a voluntary polygraph examination and forwarded it to the Court. In it, he answered the questions: “Did you undergo a transfusion on July 20 or July 21, 2010? (No); On July 20 or July 21, 2010 did you receive a transfusion? (No); Did you submit to a transfusion on July 20 or July 21, 2010? (No); Did you knowingly ingest clenbuterol on July 20 or July 21, 2010? (No); Between July 20 and July 21, 2010 did you deliberately ingest clenbuterol? (No); Were you aware that clenbuterol was entering your body, in any way, on July 20 or July 21, 2010? (No)”
386, The Court:
Dr Louis Rovner concluded in his expert report, and confirmed during the hearing, that “it is my professional opinion that Alberto Contador was telling the truth when he answered the relevant questions above.”
393, The Court:
In respect to the probative value of the polygraph test the Panel notes that the examination was conducted by Dr Louis Rovner, a highly experienced polygraph examiner who alleges to be 95% accurate and that the remaining 5% were false positive results.
454, The Court:
To sum up…the Panel finds that although the blood transfusion theory is a possible explanation for the adverse analytical finding, in light of all the evidence…it is very unlikely to have occurred.
455, The Court:
The Panel has thus concluded that both the meat contamination scenario and the blood transfusion scenario are – in principle – possible explanations for the adverse analytical findings, but are however equally unlikely. In the Panel’s opinion…the third scenario is not only possible, but the more likely of the three.
The Supplement Scenario
130. UCI:
It is possible that the clenbuterol found in the urine of Mr Contador was ingested with a contaminated food supplement and that this route of ingestion is more likely than an ingestion of contaminated meat. Such likelihood results from the widespread use of food supplements in sports, the incidence of food supplements contaminated with prohibited substances, including clenbuterol, the use of food supplements in the Astana team during the 2010 Tour de France and the fact that there is no proof that Mr Contador did not use other food supplements than those used by the rest of the team, and the absence of investigation by Mr Contador of this route of ingestion.
132. WADA:
Another plausible scenario is that the adverse analytical finding results from a contamination through a food supplement. Clenbuterol is precisely one of the substances which can be found in food supplements. Mr Contador admitted that he used the food supplements of the team. WADA considers that it is not verifiable whether Mr Contador took other food supplements or that his team’s food supplements were not proven to be not contaminated. WADA therefore submits that it is more likely to test positive as the consequence of use of a food supplement rather than as a consequence of the consumption of ingestion of contaminated meat in Europe.
135. Contador:
Mr Contador further asserts that the contaminated supplement theory should also be set aside. In fact, he did not take any supplements between his 20 July 2010 test and his 21 July 2010 test. Moreover, all the Astana riders were taking the same supplements throughout the 2010 Tour de France and, more generally, the 2010 season; none of them failed a doping control test. The same supplements have been made available in 2011 and none of those riders have failed any doping test for clenbuterol. Finally, none of the manufacturers of the supplements that were made available for Astana have been implicated in any contamination case, use or store clenbuterol or any other prohibited substance in their warehouses, or have ever been blamed for an athlete’s positive drug test. The Appellants’ suggestion that he may have taken another food supplement is speculation.
138 RFEC:
No evidence is produced by WADA or the UCI to prove contamination through vitamin supplements. The Appellants solely make statements without any documentary support.
216. Contador:
The Appellants’ supplement scenario is simply a fall-back position and is not corroborated by any evidence whatsoever and amounts to the following allegations:
a) the Athlete was taking supplements;
b) supplements have in the past been found to be contaminated with prohibited
substances; and therefore
c) the clenbuterol in the Athlete’s sample could have come from a contaminated
supplement.
217. Contador:
It is notable that the Appellants have not actually ruled out contaminated meat as a possibility (because they cannot do so) but that they have merely asserted that the blood transfusion theory and the supplement theory are more likely to have been the source of the prohibited substance. This leaves the Panel faced with a choice of three possibilities as to how the clenbuterol entered the Athlete’s system.
230. Contador:
When an athlete is seeking to establish the source of a substance on the balance of probabilities, CAS panels have accepted submissions from the authorities to the effect that a mere speculation as to a source is insufficient. The principle of equal treatment requires authorities to be held to the same high standards. So here, for example, when the Appellants speculate without any evidence whatsoever that the source may have been a contaminated supplement, CAS must remember the scepticism with which it would regard a similar argument coming from an athlete.
284. The Court:
[The Appellants] presume that because there is no history with clenbuterol, the meat is unlikely to have been contaminated. According to Mr Contador, that is a surprising conclusion of the Appellants; in order to try and demonstrate their allegation, the counsels for Mr Contador asked the following question and invited the Panel to consider it by analogy: Would the Appellants conclude that an athlete did not dope or had been the victim of food supplements contamination on the basis that he passed 500 doping control tests before failing one? They do not.
483. The Court:
In respect to whether or not [Contatdor] may have used supplements not mentioned on the list, the Panel is of the opinion that the assertions of the Athlete himself and the statements of his teammates are insufficient in terms of evidence to rule out that possibility.
484. The Court:
Having found that it is possible that the adverse analytical finding was caused by the ingestion of contaminated food supplements, it remains to be examined whether the meat contamination theory or the food supplement theory is more likely to have occurred.
487. The Court:
Considering that the Athlete took supplements in considerable amounts, that it is incontestable that supplements may be contaminated, that athletes have frequently tested positive in the past because of contaminated food supplements, that in the past an athlete has also tested positive for a food supplement contaminated with clenbuterol, and that the Panel considers it very unlikely that the piece of meat ingested by him was contaminated with clenbuterol, it finds that, in light of all the evidence on record, the Athlete’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat. This does not mean that the Panel is convinced beyond reasonable doubt that this scenario of ingestion of a contaminated food supplement actually happened. This is not required by the UCI ADR or by the WADC, which refer the Panel only to the balance of probabilities as the applicable standard of the burden of proof.
489. The Court:
Consequently, the Athlete is found to have committed an anti-doping violation.
493. The Court:
As none of the conditions for eliminating or reducing the period of ineligibility…are applicable – in particular because the exact contaminated supplement is unknown and the circumstances surrounding its ingestion are equally unknown – the period of ineligibility shall be two years.
507. Contador:
It is common ground that the amount of clenbuterol in the Athlete’s system on 21 July 2010 was too small to have had any effect whatsoever. Any results subsequently obtained by the Athlete cannot therefore have been affected…The Athlete has undergone approximately 20 tests since he has resumed competing, all of which he has passed.
512. The Court
In summary, the Panel concludes that:
a) the Athlete’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat;
b) no evidence has been adduced proving that the Athlete acted with no fault or negligence or no significant fault or negligence;
c) a two year period of ineligibility shall be imposed upon the Athlete, running as of 25 January 2011;
d) the 2010 Tour de France result of Mr Contador shall be disqualified as well as the results obtained in all competitions he participated in after 25 January 2011 when the ineligibility period is decided to have begun.
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