Tour de France champ Alberto Contador vows to challenge doping verdict (+video)

Burden of proof on the athlete

Ultimately, the debate is not so much over antidoping rules, but over the ample room for legal interpretation when it comes to their enforcement, as the Contador and Armstrong cases illustrate. Fans, athletes, and antidoping advocates are criticizing the global antidoping system as lacking credibility, and demanding that it be reformed.

“Everyone agrees with the rules, but these don’t say how they should be applied, unlike a regular court system,” says Fermín Morales, a law professor in the Universidad Autónoma de Barcelona and a leading expert on antidoping legislation.

Contador's case ultimately landed in the CAS. The highest court for doping violations, it 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.

Contador said from the beginning that the traces of clenbuterol came from inadvertently eating contaminated meat. (Some farmers use the drug to boost beef production, although it is outlawed in the European Union.) But not surprisingly, he was unable to provide a sample of the allegedly contaminated meat more than a year after the fact. 

The World Anti-Doping Agency and the International Cycling Union argued instead that the drug entered Contador's system not through meat but through an illegal blood transfusion, citing traces of a plastic found in his system the day before he tested positive for clenbuterol.

After spending 90 pages rejecting the allegations from both sides, the panel of CAS arbitrators concluded in four paragraphs that the most likely cause was the use of contaminated food supplements, a possibility that although unlikely, can’t be “excluded.” That was enough to convict Contador, who CAS said had not satisfactorily proven how the substance had entered his body.

CAS suspended him for two years and stripped him of the titles he had won since the detection.

Contador can appeal to the Swiss Supreme Court, but only on procedural grounds. He still also faces a fine of nearly €2.5 million ($3.3 million) for his winnings during the two-year suspension, which will end in August.

“I don’t think they’ll be able to preserve a system based on the presumption of guilt,” says Professor Morales. “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, he adds, “you can expect legal uncertainty and controversy.”

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