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The Explainer: Questions about the Contador decision

  • By Charles Pelkey
  • Published Feb. 16, 2011
  • Updated Feb. 17, 2011 at 8:56 AM EDT

Dear Readers,
I normally post my weekly “Explainer” column on Thursdays, but yesterday’s Contador decision generated a number of emails and I thought it might be worth bumping the column up by a day.

I’ll try to answer a representative selection of questions from my inbox.

Q. Dear Explainer:
From the media coverage (as flawed as it is) of Operación Puerto, through the Valverde case to today’s ruling on Contador, it seems apparent to this layperson that RFEC is much less capable of punishing Spanish athletes for doping sanctions than their counterparts in other countries. Is it possible for WADA, the UCI or IOC to decertify or otherwise refuse to recognize RFEC, USADA or any other analogous national body of any country in light of the discrepancy between doping enforcement standards in one country as opposed to other countries?

If so, what would be necessary for that to happen and what would result? I assume the athletes serviced by that body would no longer be permitted in international competition or the athletes would be serviced directly by the international body until the affected country could institute a replacement. Do RFEC’s (in)actions come close to putting them at risk of losing their IOC/WADA/UCI certification?

Please note, I understand RFEC’s U.S. analog is USADA, not USA Cycling. If I am mistaken in that understanding, please know that I mean to refer to the analogous organization in my query.
Thank you,
Aaron

A. Dear Aaron,
Let me first start by clarifying the procedural roles of the players in these cases. Under the World Anti-Doping Code, doping cases generally fall under the jurisdiction of an athlete’s national federation. The Real Federación Española de Ciclismo (RFEC) is the Spanish counterpart not of USADA, but of USA Cycling.

You might then ask why American doping cases are handled by USADA rather than the respective governing bodies of individual sports. Here in the U.S., our national Olympic Committee has wisely handed its jurisdiction over to our national Anti-Doping Agency.

I say “wisely” because I think that the recent RFEC decisions in Valverde and – perhaps – Contador appear to underscore the problem of having a governing body adjudicate cases involving its own athletes. Not having read more than the small pieces of the RFEC decision that have been made public, I am reluctant to attack the reasoning used in reaching the conclusions. That said, it’s also difficult to see a governing body make a decision on a case in which the outcome would have a direct impact on the future of the sport that governing body oversees. The phrase “too big to fail,” comes to mind.

Under the WADA Code, a doping case involving an American cyclist could fall to USA Cycling, but here it is immediately handed off to USADA. While the folks at USADA often say they are “merely in search of the truth,” let’s be blunt and admit that the agency does a really good job at filling a critical role: that of prosecutor.

While the WADA Code is largely an administrative set of rules and procedures, when it comes to the sporting world, a doping violation is about as close as you can get to a criminal matter. I personally would prefer to see such clear lines of delineation in doping cases, with prosecutors, defendants and judges. Like I said, USADA does a great job filling that role as “prosecutor” and I would venture to say that even the folks at USA Cycling would concede that USADA does a better job at it than they would.

Unfortunately, not all national federations and Olympic committees take the same approach. As a result, you often see “softball” resolutions to cases, like Alexandre Vinokourov’s one-year suspension for homologous blood doping handed down by the Kazakh cycling federation or, some might argue, the RFEC’s decision in Contador.

One thing that stands in contrast to most criminal cases, though, is that there is an avenue for appeal if the penalty is seen as too lenient. Under the WADA Code, an international federation (in our case, the UCI) or WADA itself can appeal a suspension to the Court of Arbitration for Sport (the sporting world’s version of the Supreme Court) on the grounds that it isn’t harsh enough. That’s what the UCI did in the case of Vinokourov and that’s what we might see in Contador’s case.

To the core issue in your question, whether or not the UCI, the IOC or WADA can “de-certify” a national federation for a failure to vigorously pursue doping cases, the answer is that it’s doubtful. While the appeal option is there and frequently used, the steps necessary to decertify an entire national federation are both lengthy and costly. A case involving such an attempt would involve the WADA Code, the Olympic charter and the rules of the international governing body. The first step would probably involve the international federation challenging the ability of the national federation to handle its duties, including the adjudication of doping cases.

I think there is a faster route to addressing that question and one that would help the fight against doping and move toward greater “harmonization” of the way these cases are handled. Namely we would all be well served if WADA would amend the Code and take the duty of adjudicating doping cases out of the hands of sports federations entirely and move all of them into the jurisdiction of each country’s respective anti-doping agency. There would still be problems. There would still be national biases at play, but I suspect they would be lessened when the case is handled by an agency that does not have a direct interest in the outcome.
Charles

Q.Dear Charles,
A lot of things bother me about this rule concerning strict liability, especially as it relates to Alberto Contador and trace levels of the banned substance found. In particular, I’m disturbed that the German lab went over and above what was required for testing purposes. I don’t understand why they just didn’t test at the level required by the rules, and then none of this would have transpired. It seems like it was just the luck of the “draw” that his sample went to this highly sophisticated lab, and not one that would’ve tested just at the level required by the rules.
Dave

A.Dear Dave,
I understand your argument, but I am not sure I agree on all counts.

First off, you are right in saying that the lab in Cologne went above and beyond the call of duty in testing the rest day sample from Alberto Contador. As part of the “harmonization” effort undertaken by the World Anti-Doping Agency when it was created, the agency established minimum laboratory standards that all WADA-certified anti-doping laboratories must meet. In order to be certified by WADA, a lab has to meet a set or procedural standards (recall that compliance with those became an issue in the Landis case) and must be able to detect a given level of banned substances in a particular sample.

There is nothing barring a lab from doing better than that. The minimum requirements under the WADA guidelines should not be confused with a maximum permitted level of a particular banned substance. There are, indeed, substances which the WADA Code allows an athlete to have in his or her system up to certain levels. There used to be a maximum allowable level of caffeine, for example. That rule was established after anti-doping authorities learned that some athletes were using caffeine suppositories for an extra boost (I don’t think those are available at Starbucks and, if they are, I would advise against ordering the grande). The prohibited substances list has since eliminated caffeine, but there are a number of others that remain. Do recall, for example, that the Alessandro Petacchi salbutamol case was based on the fact that the detected levels of that bronchodilator were beyond the levels permitted by his Therapeutic Use Exemption.

The rules are based on the crime, not the competence of enforcement.

Unlike its cousin, salbutamol, clenbuterol is banned entirely. There is no permissible level allowed under the provisions of the Code. As I mentioned last week, there was a reason that 10 samples were specifically isolated and sent to the lab in Cologne for further analysis. According to the Independent Observers’ Report from the 2010 Tour, wanted to take advantage of the higher standards at the Cologne lab in order to conduct “additional analysis for new substances and/or methods.”

One would have to conclude that the UCI flagged the Contador sample on the basis of some suspicion. Whether that suspicion involved clenbuterol is unclear and that question was not addressed in the report, but it’s not the lab’s fault that tiny amounts of clenbuterol were found.

I guess it’s kind of like that most common of strict liability violations, speeding. If you drive five miles-per-hour over the speed limit in Mayberry and Barney Fife doesn’t actually figure it out, you’re still speeding. If you do the same thing in the next town and RoboCop pulls you over because he has an advanced radar detector, it’s not really his fault that you were speeding. It’s still your fault, no?
Charles

Q.Dear Explainer,
So Alberto Contador’s provisional suspension has ended. As there are already almost 4 billion posts regarding whether he’s guilty or innocent, I’m not going to add my 2¢, but I do have some procedural questions on what may happen next:

If, as expected, either UCI or WADA file an appeal to CAS, can he still race or is there a new provisional suspension until the CAS ruling?

If CAS overturns REFC, would he get credit for ‘time served’ from August til now or does his race on Wednesday start the clock all over again?
Thanks,
─ Ken

A.Dear Ken,
You are probably right. I think it’s reasonable to expect that the UCI or WADA will file an appeal. As mentioned above, they have certainly done it in the past, with Vinokourov and Valverde.

The Valverde case is probably a good example of how the question of provisional suspensions are handled during an appeal. Valverde’s case went to CAS and he continued to ride (well, except in Italy) until the case was resolved.

Contador would have the option of riding while the case is on appeal. Had he been suspended and banned from competition, that suspension would have applied throughout the appeal. Given that Contador was essentially absolved and was not handed a suspension by the REFC, he can race, even if the case is appealed. The effect of a ruling in the initial hearing is that those findings apply until a higher court (in this case, CAS) says otherwise.

If an appeal succeeds, Contador is likely to get credit for the time he already served under the original provisional suspension, although CAS has been known to tinker with the precise starting date of other suspensions.
Charles

Q.Dear Explainer,
Early on in the Contador case, there was a lot of talk about plasticizers. Why were they not being considered in this case from legal standpoint? And can his sample be back-tested if a test is eventually approved?

I also wonder about last year’s Tour. Who won? Will Contador be DQ’d from TdF even if he’s cleared and wins if there is an appeal?
─ Andy

A.Dear Andy,
The whole issue of plasticizers is still up in the air. There are a number of scientific questions regarding plasticizers that have to be worked out before that kind of evidence can be admitted. The big issue isn’t the ability to test for their presence, but revolves around the question of what levels can be attributed to normal environmental exposure and what levels can be attributed to the illicit use of plasticized medical equipment.

While the WADA Code does allow for the storage and subsequent back-testing of samples, it could be difficult to raise this one at a later date. It’s possible, but doubtful, that the case would be resurrected based solely on the presence of inexplicably high levels of plasticizers. For one thing, UCI president Pat McQuaid has said that he wants the case resolved before the start of this year’s Tour de France. If they dredge up the whole plastics issue and frame it within the context of a new test, I can guarantee that this thing will drag on for years and not months.

Your second question raises a very interesting issue. I have to admit that I have not yet read the RFEC panel’s findings in this case, so bear with me while I do a little bit of speculating here.

First, it is my understanding that no one has disputed the fact that there was clenbuterol in Alberto Contador sample. That is a given. The basis for the RFEC’s decision was one of fault.

In reviewing the Code, there appears to be a little bit of wiggle room for the Court of Arbitration for Sport and one could conceivably see a decision that 1) upholds the RFEC’s decision to absolve Contador, but 2) negates his results from the race at which the sample was taken, the 2010 Tour.

First, look to Article 9 of the WADA Code, which notes that

“An anti-doping rule violation in Individual Sports in connection with an In-Competition test automatically leads to disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, points and prizes.”

The ensuing commentary – which does not carry the same weight as the rule itself, but can be used as a guideline for a review panel – makes the following observation:

“When an Athlete wins a gold medal with a Prohibited Substance in his or her system, that is unfair to the other Athletes in that Competition regardless of whether the gold medalist was at fault in any way. Only a “clean” Athlete should be allowed to benefit from his or her competitive results.”

Article 10.1.1 adds that

“If the Athlete establishes that he or she bears No Fault or Negligence for the violation, the Athlete’s individual results in the other Competitions shall not be disqualified unless the Athlete’s results in Competitions other than the Competition in which the antidoping rule violation occurred were likely to have been affected by the Athlete’s antidoping rule violation.” (Emphasis added)

So, Contador could be found to have had no fault and still have his Tour results negated. But we’re in something of a grey area and it all may depend on whether the appellant can show that rest day result can be applied broadly and whether that shows that he had actually benefitted from the presence of the banned substance. That might be a stretch, given that Contador only tested positive for clenbuterol on a single day and the detected levels were 50 trillionths of a gram per milliliter of tested sample.

Who knows what the outcome will be? The only thing of which I am quite certain is that lawyers, journalists and others will have plenty to talk about for months to come. Hey, how is that a bad thing?
Charles


“The Explainer” is a regular feature on VeloNews.com. If you have a question feel free to send your query toCPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.

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