Three-time Tour de France champion Alberto Contador signaled today his intention to appeal the doping conviction handed down yesterday by the Court of Arbitration for Sport (CAS) after a grueling 18-month legal battle.
"I want to go all the way," said an unapologetic yet visibly distraught Mr. Contador, who had once vowed to quit the sport if determined guilty.
The controversial conviction of the Spanish cycling hero has highlighted both scientific advances and weaknesses in the unorthodox legal system used to police international sports.
Unlike some other high-profile doping investigations, the issue was not whether a banned substance had been detected: Everyone, including Contador, agreed that minute traces of the performance-enhancing drug clenbuterol had been found in his system during the 2010 Tour.
Instead, it was the length of the process – 18 months of legal wrangling, heavily covered in the press – that left all sides equally suspicious of foul play. Contador's case highlights that as the World Anti-Doping Agency (WADA) enters its second decade, cleaning up sport is becoming less of a technical challenge and more of a political and legal one.
The ruling against the Spanish hero came just after US federal prosecutors announced they had dropped their two-year probe of alleged doping by Lance Armstrong, a seven-time Tour winner and global cycling legend. That decision is also being criticized as politically influenced.
“You can’t go 18 months without a decision. They should redo their rules so that they can come to decisions faster,” says Don Catlin, a pioneer of antidoping efforts and one of the most prominent doctors in the field. “In the Armstrong matter it’s a heavy dose of politics. Law-and-order people and WADA thought they were going to catch him. But the government felt they didn’t have enough [evidence]....”
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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.”
But US attorney Howard Jacobs, who has made a name for himself defending athletes charged with doping, says he doesn't have a problem with athletes bearing the burden of proof. “It’s just that it has to be done on a fair way, and that is on a case by case basis.”
Among the cases he has taken on is that of top US swimmer Jessica Hardy, who missed the 2008 Beijing Games after testing positive for clenbuterol but was granted leniency after arguing that it came from a contaminated food supplement.
Jacobs says that in most of the cases he has dealt with, the doping was unintentional. “The athletes are so focused on their sports. Most of them don’t think [of] getting involved [in antidoping rules] until they have a problem, until they are confronted with very difficult rules that seem unfair.”
Morales says that cases like Armstrong’s and Contador’s will eventually force a revamp of anti-doping legal procedures. But he thinks any reform will not be voluntary, but rather "the result of a dispute over the jurisdiction of a case, between sporting bodies and regular courts."
Resentment in Spain
The Spanish cycling federation was the first to take up Contador's case and proposed a one-year suspension, which Contador appealed and even the government criticized. Spain unexpectedly cleared the cyclist. But WADA and UCI, which suspected manipulation, appealed the case and CAS took it up.
“It is regrettable there was some political interference at the first instance ... from Spain which inevitably led to the appeal,” WADA President John Fahey said in a statement yesterday.
Contador has always held that WADA and UCI are out to get him because of refusing to admit guilt. Spain also has a history of doping scandals, and WADA and UCI likely felt pressure to make an example out of a high-profile cyclist, Contador’s supporters argue.
Tuesday’s editorial in El País, Spain’s most-read newspaper, illustrates the unease in Contador's home country: “It appears obvious that the Contador case has been politically mismanaged. … It transmits a feeling of chaos and subjectiveness. With the same facts, one institution absolves and the other punishes with the strongest terms.”
In his press conference today, Contador highlighted that the CAS ruling concluded that any doping was unintentional. When asked if he felt he was being “persecuted,” he replied, “I don’t want to get into that because I have many years ahead” in competition. “I just hope that for the good of athletes, or sports, that [these proceedings] don’t take as long."