A day after the Spanish cycling federation unexpectedly cleared him of doping allegations, triggering a wave of global criticism, an ecstatic Alberto Contador returned to competitive racing Thursday.
But that satisfaction may be short-lived. If the International Cycling Union (UCI) and the World Anti-Doping Agency (WADA) are not satisfied with the Spanish interpretation of international doping rules, they have up to two months to request a fresh review from the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, with whom the final decision would then rest.
At stake for Mr. Contador is his 2010 Tour de France victory and the ability to try for a fourth title this year. But for the international sports community, the implications could be far greater if his case is taken up again.
At issue is a potentially landmark decision in a broader decades-old debate: whether the burden of proof in doping cases should lie with athletes or with the agencies and officials tasked with keeping sports free of illegal drugs.
As WADA's alphabet-soup list of banned drugs has grown since the organization was founded a decade ago, numerous athletes who have tested positive – including Contador – have argued that the illegal substance found in their body was a result of food or supplement contamination, rather than intentional doping.
If Contador's case – one of the most high profile in cycling – goes to CAS, it could become a showdown. On one side are those, including WADA, who insist that an athlete is responsible for cheating no matter what his or her motives. On the other are those who argue that the anti-doping regime has become too bureaucratic and dogmatic to mete out justice in doping cases, where the science is still being refined and intent is often hard to prove.
Two key issues: Intent and impartiality
The decision to exonerate Contador came as a surprise. European media broadly questioned the reversal only three weeks after the Spanish federation communicated its provisional decision to suspend the cyclist for one year – a move that would have stripped him of his latest Tour de France title.
Contador, a three-time Tour champion, has claimed that the clenbuterol detected during a rest day of the last Tour de France came from a contaminated steak a friend brought for him. Clenbuterol, an agent used to improve leanness in cattle and humans, has been banned in Europe for decades and even Spanish cattle herder associations accused the cyclist of mudding up their image.
Two key issues are whether Contador intended to take the drug – a condition referred to as "intentionality" – and whether the Spanish cycling federation showed partiality in clearing the national hero of doping charges. International sports officials have lobbied for the Court of Arbitration to get to the bottom of both questions.
“I strongly hope that UCI and WADA appeal to CAS to ensure that this case is really solved,” said International Olympic Committee Vice President Thomas Bach on Wednesday, speaking to German media.
The Swiss arbitration court would not treat the case as an appeal, but rather a do-over.
“It’s [international bodies] saying they are not content and want the investigation redone. It’s tried all over again,” says Jan Paulsson, one of more than 100 CAS arbitrators. “You don’t want to have any suspicion that a national federation might show favoritism.”
“It’s up to the athlete to prove that whatever product got into his system – in this case clenbuterol – got in without his knowledge,” UCI president Pat McQuaid told journalists from the Tour of Oman. “In this case, my understanding is that Contador has not proven that, but until such time as we see the full dossier we can't really comment on it.”
Contador's intent under scrutiny
The Spanish champ is fighting an uphill battle, experts agree.
“The general rule is that doping infractions are not about intentionality of having an unfair advantage. You have violated the rules because you have illegal substance in your body and it's your duty to see that you don’t,” says Paulsson. “It’s not up to doping authorities is to prove intentionality. The system couldn’t work and it would die.”
He cited the example of equestrian cases when owners allege a horse’s hay is contaminated by competitors to disqualify them. “The witness can’t tell you much, so how do you decide? It makes legislating on this area difficult.”
Contador has accused anti-doping organizations of making him a scapegoat. He called for revamping current rules to set minimum thresholds for investigation, arguing that as testing technologies advance they are able to detect increasingly minute traces that may be due to contamination rather than intentional doping.
But few expect any change of heart from international bodies.
“Contamination has been an issue for years. It becomes more of an issue as detections improves," says Howard Jacobs, a California-based lawyer who advocates for athletes in doping cases, including Floyd Landis, the only cyclist to have been stripped of the Tour de France. "As tests get more sensitive you will have more contamination cases. But so far WADA has not shown any inclination to adopt lower thresholds to deal with these contamination problems.”
Mr. Jacobs helped Jessica Hardy, a US swimmer who missed the Beijing Olympics after testing positive for clenbuterol, to win a reduced sentence on the grounds that the drug had come from a contaminated food supplement – a ruling CAS upheld.
In Contador’s case, the Spanish federation appears to have backed the cyclist's allegations that he didn’t knowingly dope himself and that the minute traces of clenbuterol found in his body could not have been ingested voluntarily, much less with the intent of improving his performance. Some medical experts support those arguments in Contador’s case.
Spain under fire for partiality
The official justification of Spain’s federation hasn’t been made public, but Contador’s defense made no secret of its arguments.
The reversal also came after last week’s unusual support from Spanish Prime Minister José Luis Rodríguez Zapatero, who tweeted “there is no legal reason” to justify a suspension of Contador.
The UCI’s top official criticized the tweet as meddling.
“It’s up to sport to police itself and sport should be allowed to do that," said McQuaid. “I don't think [the process] should be interfered with by politicians when they don't know the full facts.”
McQuaid called the involvement “unwarranted” and warned “it doesn't help the image of Spain either. It shows they’re biased towards supporting their own regardless of what the facts of the case might be.”
He hopes a final decision will be made before the next Tour de France in July.
Contador argues that the case is not about "patriotism" but is a "legal and scientific issue." But meanwhile, he is enjoying being back in the saddle with fellow competitors.
"I haven't had this much fun for some time," said Contador after today's race. "These have been some tough months."