Opinion: Why CAS banned Contador

We still don’t know what actually happened. Two-and-a-half years of bans, rescinded bans, hearings, and arguments that were by turns hilarious and laughable, and we still don’t know how Alberto Contador came to fail a dope test for a miniscule quantity of the asthma drug clenbuterol in the middle of the 2010 Tour de France. And it seems unlikely we ever will.

That’s not to say the 98-page decision of the Court of Arbitration for Sport isn’t a cracking read, or that it isn’t an excellent demonstration of how the doping legislation is designed.

>> Struggling to get to the shops? Try 6 issues of Cycling Weekly magazine for just £6 delivered to your door <<

There was a great bit (para 135) where Contador argued that the steak must have been contaminated, because if it hadn’t been, well then where had the clenbuterol in his urine come from?

And I enjoyed the part (para 274) where the two parties held an entirely straight-faced debate on what size the cow must have been based on the dimensions of the steak. The meat in question cost €32 a kilo (at which rate a gasp from your asthmatic mate’s inhaler would seem a bit of a bargain), and weighed 3.2kg.

This meant the cow must have weighed between 290kg and 350kg, an analysis that would have been of more value if that margin didn’t apparently include pretty much every relevant animal in Spain.

Personally, I’d have thought that if a slip of a lad like Alberto ate 3.2kg of steak he’d have started the next stage with a bump in the middle like a constipated python, but this question was sadly left unexplored.

Likelihood of possibilities
The weakness of the arguments put forward by Contador to support the contaminated meat claim is clear from the start. He kicked off by appealing for an extra-flexible approach to the law to meet the needs of justice (para 218). Asking the court to bend the rules in your favour is not generally recognised in the trade as a clarion call of innocence.

The Spanish federation did attempt to help out, but you have to doubt how much assistance they provided by disingenuously asking how, since Contador had eaten the evidence, anyone was ever going to prove anything? Their attempt to explain what they meant by ‘prove’ was not quite the model of clarity they intended: The circumstance that a possibility is more likely than other possibilities does not mean that this relatively more likely possibility is also more likely than not to have occurred (paras 231 and 232).

By the time Contador asserts that ‘I have always been surrounded by people (cyclists, doctors, trainers, etc) who categorically reject [doping]’ you feel that the defence has pretty much rolled over and sunk (para 339). WADA and the UCI barely raised the energy to throw stones at the hulk when they provided a list of 12 convicted team-mates and the names of former manager Manolo Saiz and current manager Bjarne Riis as a counter-argument.

(The court rightly ignored both sides of this one – ‘guilt by association’ can’t be used as evidence, or you could probably line up every professional cyclist from the last 80 years.)

It’s very easy to criticise a failing defence. But in the end WADA and the UCI didn’t seem to play a blinder either – they spent vast amounts of time and money pushing the theory that the clenbuterol had come from a blood transfusion, only to see it dismissed by the court in half-a-dozen sentences. (Though WADA and the UCI rightly objected to the court’s refusal to allow their blood-transfusion expert to comment on an important aspect of the argument.)

No tidy resolution
The way the WADA code works, as soon as the positive test was confirmed Contador was essentially guilty, and had to make the running to escape a sanction. It was up to him to explain how the drug could have got there innocently, and to show not only that his explanation was possible, not only that it was the most likely of the available explanations, but that there was in fact a better than 50/50 chance of it having been what actually happened. (This is the ‘balance of probabilities’ that everyone keeps talking about.)

WADA and the UCI, on the other hand, didn’t have to prove anything. They just had to raise enough doubt about Contador’s explanation to keep it below the 50/50 threshold, which is why it doesn’t matter at all that in the end the court didn’t really accept anyone’s explanation.

I would speculate that the court probably ranked the chances of the competing explanations at something like 0.5 per cent for contaminated meat, 10 per cent for transfusion, and 20 per cent for contaminated supplement. And in deciding that meant a two-year ban, they applied the code perfectly.

That’s why the case feels so unsatisfactory. There was no need for it to present a tidy resolution. So it didn’t.

This article originally appeared in the February 16 2012 issue of Cycling Weekly magazine

Related links
Contador banned for two years after clenbuterol positive