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Opinion: Not so black and white

  • By Anthony Tan
  • Published Feb. 10, 2012
Contador (L) looks on prior to the opening of his hearing before the Court of Arbitration for Sport on November 21, 2011 in Lausanne. (file) Photo: FABRICE COFFRINI / AFP

Cheat (v): act dishonestly or unfairly in order to gain an advantage.
– The Oxford Dictionary

Now that you’ve read and understood the definition of ‘cheat’, read what World Anti-Doping Agency (WADA) president, John Fahey, told the Associated Press this week, following Monday’s announcement by the Court of Arbitration for Sport (CAS) that Alberto Contador had been found guilty of a doping offense:

“Anyone who is found by a tribunal in a matter in which he was found to be a cheat, is a cheat,” Fahey said.

“The simple fact is that anyone who has a prohibited substance in their system is a cheat. It is as simple as that. The only argument then comes as to what was the nature of how that prohibited substance got into the athlete’s system. But you’re a cheat, effectively, the moment you’ve got that substance in there.”

What a silly, overly-simplistic view of such a complex matter.

The thing is, I agree with the decision by CAS. Clenbuterol is, and remains, a zero-tolerance drug under the WADA code of prohibited substances.

In the July 21, 2010 test, the second and final rest day of that year’s Tour de France (at the time, Contador was leading the race by a margin of eight seconds over Andy Schleck), the Spaniard was found to have clenbuterol in his system, and as such violated Article 21.1 and 21.2 of the UCI anti-doping rules, vis-à-vis:

21.1: The presence of a Prohibited Substance or its Metabolites or Markers in a Rider’s bodily specimen.

21.2: Use or Attempted Use by a Rider of a Prohibited Substance or a Prohibited Method.

Article 21.1 also states, under 21 (1) (1):

“It is each Rider’s personal duty to ensure that no Prohibited Substance enters his body. Riders are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an anti-doping violation under article 21.1.”

And 21 (1) (3) states: “… the presence of any quantity of a Prohibited Substance or its Metabolites or Markers in a Rider’s Sample shall constitute an anti-doping rule violation.”

So, yes, as soon as the Cologne lab found those miniscule 50 picograms of clenbuterol in his urine, Alberto Contador Velasco committed a doping offense. Given the strict liability associated with the prohibited drug, the consequence was a two-year suspension, which he will now serve until August 5 this year.

Nowhere, however, in the UCI rules or CAS finding does it say or imply Contador is a cheat – that he consciously acted in a dishonest manner to enhance his own performance.

Quite the opposite, in fact.

In Paragraph 487 of the 98-page CAS finding it says:

“Considering that the Athlete took supplements in considerable amounts, that it is incontestable that supplements may be contaminated … 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.”

In other words, on the balance of probabilities – and that’s what we’re dealing with here; as Dutch scientist Douwe de Boer, who assisted Contador in the early days of the case, said: “Nobody can prove anything” – Contador most likely ingested the clenbuterol inadvertently.

Most likely, according to the CAS panel, Contador was not a cheat.

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