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Why (and How) Bert Should Appeal

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Why (and How) Bert Should Appeal

08 Feb 2012 07:18

Bert has been sanctioned on the basis of a contaminated supplement. While CAS has conceded they don’t know with great certainty that this is the source of his CB, by coming to this conclusion, they have opened the door to an appeal—not of the conclusion itself, but of the sanction. All Bert has to do is point out that the level of CB in his urine that resulted in the sanction could—in fact, would have necessarily—come from a supplement that would test clean by current industry standards.

This study, about five years old, analyzed about 50 samples of different supplements, and found that about 25% were contaminated with steroids, and about 10% contaminated with stimulants (CB is classified as a stimulant). What I found very interesting was not the number of samples that didn’t pass inspection (earlier studies have come to a similar conclusion), but that the detection limit used for CB and other stimulants was 100 ng/g.* The level used for meat in Europe is a thousand-fold lower—100 ng/kg—which means that “clean” supplements can be considerably more contaminated than clean meat. This is basically what opens the door to an appeal (assuming it can be done within the legally allowed framework).

I hadn’t known this before (I have never taken supplements), but most of these supplements are ingested in multi-gram quantities, even the pills or tablets, let alone the drinks, powders, power bars, etc. (See note* below, the detection limit is based on ingestion of 50g. daily of the supplement). So a supplement that tested clean could still have an amount of CB that could result in a positive test in Cologne. Specifically, it has been estimated that Bert’s 50 pg/ml urine concentration would correspond to an ingestion of 200-500 ng of CB. One can modify assumptions and widen that range, but the bottom line is that it is extremely likely—certainly far more than balance of probabilities-- that IF Bert’s positive resulted from ingesting a supplement of several grams or more, that supplement would have tested clean by what is at the very least a recent industry standard. So if CAS wants to make the official cause of the positive a contaminated supplement, they are forced to concede that there is nothing Bert could have done to avoid that contamination. He is not at any fault whatsoever.

In fact, WADA has already laid the groundwork for this rationale. At RFEC, WADA argued on the basis of pharmacokinetics that Bert’s level of CB could not be explained by meat that passed the Euro criterion. This argument is entirely correct, and was accepted by Bert's team, but by making it, WADA is acknowledging that if Bert had a lower level (say 5-10 pg/ml), his positive could have resulted from meat that passed inspection, and that therefore he would have not been at any fault. If a contaminated supplement was the source of the CB, Bert is no more at fault for ingesting it than he would be for a lower level of CB that resulted from eating Spanish meat that passed inspection. In either case, the athlete cannot be held responsible for consumption of something that passes the official standards.

I’m not pointing this out because I think Bert is necessarily innocent of doping. The positive DEHP test, for me, is very compelling evidence of transfusion. I think it’s quite possible he transfused blood without CB, and also took a contaminated supplement, the latter being what triggered the positive. But legally, the DEHP positive doesn’t carry much weight. It’s all about CB. And I think CAS has set a trap for itself here. To reiterate, there is basically no way this amount of CB could have gotten into Bert's system from a contaminated supplement unless that supplement passed the industry standard. If the supplement was contaminated at a level that would make the athlete responsible, Bert's urine level would have tested at a considerably higher level.

I don't know if Bert can appeal on this basis. Supposedly one can appeal only on the basis of procedural errors. But this is complex, because Bert would not be appealing the decision itself, only the sanction associated with that decision. Technically, I don't know if this would be considered a procedural issue or not, maybe a legal mind would know.

Unlike the case with meat, there are no legal implications for supplements failing to meet some standard. They are unregulated, at least in the U.S. (don't know about Spain, but thanks to the internet, they are a global product, anyway). But I don't think this should matter in a doping case. If laboratories testing substances for contamination can't or don't detect the contaminant below a certain level, how can you possibly blame the athlete? If an athlete can be banned on this basis, UCI/WADA should institute a blanket prohibition of all supplements whatsoever, because there is no guaranteed way to protect oneself.

The only argument against the actual logic of this appeal I can see is the reported blood level of CB for Bert that was mentioned in the CAS report (the initial positive, to make sure everyone is clear on this, was based on a urine test; after preparation for the CAS appeal got under way, WADA apparently tested for CB a blood passport sample that Bert provided about the same time during the Tour). But that level, 1 ug/ml, has to be wrong. I'm quite sure no one in recorded history has ever had a CB level that high, and even if it were possible without killing yourself, you certainly couldn't get it from transfusing a few hundred ml of contaminated blood. They may have meant 1 ug/l, or 1 ng/ml, but that level still is not consistent with a urine level of 50 pg/ml about twelve hours later, nor is it consistent with any kind of transfusion scenario. It would also be pretty unlikely to result from a contaminated supplement, though it would be possible. But the initially reported urine levels, 50 pg/ml on 7/21 followed by values in the 5-20 pg/ml range on three succeeding days, are all consistent with each other, and it would be extremely difficult IMO to argue that some other, much higher, value during that same time period was valid.

*The rationale for this detection limit:

Based on the published facts that a precursor of an anabolic steroid in an amount between 1–10 μg can cause a positive doping test,18,24 and based on the fact that athletes easily use 50 g of supplements per day or more, a reporting threshold value of 10 ng/g or 10 ppb for all anabolic steroids is used in all tests. This value also allows for individual variations in metabolism. Excretion studies for stimulants are rare, but similar considerations led to the conclusion that for stimulants, a reporting threshold value of 100 ppb is opportune.


Olivier de Hon and Bart Coumans The continuing story of nutritional supplements and doping infractions Br J Sports Med. 2007 November; 41(11)

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2465258/?tool=pubmed

Clearly, these detection limits were based on the much lower sensitivity of detection for substances such as CB prior to introduction of the more advanced equipment used at Cologne.
User avatar Merckx index
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08 Feb 2012 09:37

Thank you ever so much for summing up my problem with this whole case - it's flawed from the very start because the rules aren't aligned with the science.

We are now capable of testing far greater sensitivities than we previously have been and this opens up many many possibilities for minute findings.

If the UCI, CAS and WADA had just held their hands up and said "A recent test of a sample has highleted the need for us to address our current rules and testing procedures" this whole pathetic saga could have been avoided, instead of one of the most naturally talented cyclinsts of our time having his career forever tainted by scandel.
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08 Feb 2012 10:07

I am just waiting for sniper to weigh in and state that the Israeli CAS-chairman wrote this in on purpose to give AC a better chance of appeal as a thank you for the training camp in Israel. :D;)

More back on-topic I fully agree with your analysis, MI.

Regards
GJ
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08 Feb 2012 10:18

Fascinating. I'm sure the majority of this forum want clean, fair, open cycling more than a Contador ban. Thanks for posting this, MI.
User avatar doolols
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08 Feb 2012 10:37

I skipped many long posts about this clenbuterol case, because english isn't my native language, therefore I don't really like long texts, but this was worth read. Now I'm really corious what will Contador's team do.

A question: if he appeal, then can they give him more severe punishment (I mean ban from the date of the new judgment until 2014, and lost his Tour, but keep the Giro, etc), or they can only lower the ban, delete the ban, or keep this ban?
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08 Feb 2012 10:40

doolols wrote:Fascinating. I'm sure the majority of this forum want clean, fair, open cycling more than a Contador ban.


Sorry, but clean, fair, open cycling and an AC ban are congruent things; or better: An AC ban - as ruled by the CAS - makes cycling more clean, fair and open.

Topic: I am pretty sure that presenting new "facts" (like those mentioned here) will not constitute claim of "procedural errors". But I don't know Suiss law.
SiAp1984
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08 Feb 2012 10:44

An advice for Contador, get the USA or french nationality and then appeal.
Spaniard
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08 Feb 2012 12:17

Merckx index wrote:Bert has been sanctioned on the basis of a contaminated supplement.



No he hasn't. He was sanctioned on the basis of his blood containing CB.

Merckx index wrote:While CAS has conceded they don’t know with great certainty that this is the source of his CB, by coming to this conclusion, they have opened the door to an appeal—not of the conclusion itself, but of the sanction.


The first part of this section confirms my answer above. Contaminated suplements is simply a hypothesis put forward for how the CB could have reached his bloodsteam and the relative likelihood of this being the case compared to contaminated meat or blood doping. There are other ways it potentially could have got in there, all with their own specific probabilities. Probability, however, has nothing to do with the ruling. All that matters is that an athelete tested positive for a banned substance. Due to WADA's insistence on strict liability, a positive test is a doping offence unless the athelete can prove that they did not knowingly take the banned substance. The fact that we are still talking about the probability of different scenarios only confirms that in this case the athelete has been unable to prove that the substance was not consciously taken. CAS's ruling simply means that the court (rightly) concluded that the previous judgment by the national federation was in error because proof was not, and is still yet to be, provided.

Merckx index wrote:All Bert has to do is point out that the level of CB in his urine that resulted in the sanction could—in fact, would have necessarily—come from a supplement that would test clean by current industry standards.


I have read that Contador's own team provided evidence that supplements were not the source, so I do not think this is likely to occur. The supplements he used were provided for by the team, were the same supplements used over a three year period by his teammates and himself, none of whom have ever tested positive for CB, and is produced by a company that has nothing to do with CB.

Regardless, the fact that CAS still felt that this was the most likely explanation is still worthless to Contador - it falls far below the level of proof required by WADA to overturn the CAS decision.
fujitourer
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08 Feb 2012 12:25

SiAp1984 wrote:Sorry, but clean, fair, open cycling and an AC ban are congruent things; or better: An AC ban - as ruled by the CAS - makes cycling more clean, fair and open.


That's true. I was more dealing with wishes and ideals; but you're right - one less doper riding makes the sport cleaner.
User avatar doolols
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08 Feb 2012 13:28

surley the onus is on the athlete to avoid supplements from companies who cannot guarantee that their supplements are kosher.

it's not like clen contamination happens on it own.
T_S_A_R
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08 Feb 2012 13:37

Could someone explain to me how supplements get contaminated? Is that done intentionally by the producer of the supplement or does it just happen?
"The second place is not good."
The great Alberto Contador :p
User avatar LaFlorecita
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08 Feb 2012 13:54



Guardiola is showing support for a fellow user. Pep failed a drug test as a player didn't he? Barcelona are are doing what all others in top sports are doing, perfomance chemical enhancement.

"While playing in Italy, he served a four-month ban for a positive drug test although he was cleared of wrongdoing twice on appeal in 2009 before the Courts of Justice of the Italian Football Federation (FIGC) and the Federal Anti-Doping Courts of the Italian Olympic Committee (CONI)"
"ahaha, ever had the feeling you been cheated?" JL SF Jan'78
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08 Feb 2012 14:00



Many thanks for that man.

Also mi please contact fran Contador :p

Its possible because he knew our late friends The Swordsman.
The Hitch: Winner 2013 Vuelta cq game. Winner, Velorooms prediction game 2012, 2013. 2nd all time cq rankings.
The Father of Clean Cycling, Christophe Bassons wrote:When I look at cycling today, I get the impression that history is repeating itself: riders who are supposed to be rouleurs are climbing passes at the front of the race, and those who are supposed to be climbers are riding time trials at more than 50 kilometres per hour.

The story is beginning again, just as it did 14 years ago


journalist with integrity.
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08 Feb 2012 14:03

Spaniard wrote:An advice for Contador, get the USA or french nationality and then appeal.

Advice for ****ador, wait longer to draw blood.
nevada
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08 Feb 2012 14:11

Truly fascinating post, MI. Very interesting. If there was a possibility to redo the case he may have a shot, but there isn't. I'm not sure if an appeal to the Swiss Federal Supreme Court is possible, relating to ban itself (just looking into procedures)...
Nilsson
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08 Feb 2012 14:33

fujitourer wrote:No he hasn't. He was sanctioned on the basis of his blood containing CB....

deleted for brevity....

....

I have read that Contador's own team provided evidence that supplements were not the source, so I do not think this is likely to occur. The supplements he used were provided for by the team, were the same supplements used over a three year period by his teammates and himself, none of whom have ever tested positive for CB, and is produced by a company that has nothing to do with CB.

Regardless, the fact that CAS still felt that this was the most likely explanation is still worthless to Contador - it falls far below the level of proof required by WADA to overturn the CAS decision.


Bold: I am guessing you intend AC rather than WADA ( WADA surely content with CAS findings??)?

Basically agree with post.

There are many instances of athletes taking supplements that proved to be contaminated with PEDs. Said athletes generally receive/d "time outs". My understanding is that supplements are prone to contamination and CAS is of the view that inadvertant doping via supplements certainly does not constitute "without fault".

"Strict liability" is a pain that has visited many...BUT...it is currently the rule.

In addition AC had to point to BOTH:

the PED vector (which according to CAS finding he did not) AND

demonstrate without fault (to avoid suspension) or without significant fault (to reduce suspension to as little as one year).

Given AC failed on one leg of the provision the second leg becomes moot (I think?).
ciao js

John

Craig X W
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08 Feb 2012 14:38

nevada wrote:****ador.


I see what you did there..
"The second place is not good."
The great Alberto Contador :p
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08 Feb 2012 14:38

The Hitch wrote:Many thanks for that man.

Also mi please contact fran Contador :p

Its possible because he knew our late friends The Swordsman.


Go MI do it!! Go go go! :p
"The second place is not good."
The great Alberto Contador :p
User avatar LaFlorecita
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08 Feb 2012 14:47

I believe this is incorrect. There is a twofold burden 1) the balance of probabilities requirement to demonstrate the scenario is more probable than alternative ones, and 2) that what amounts to a conditional probability prob(positive|scenario) is at least 51% (as stated in the ruling more probable than its nonoccurrence. To show the latter, there would need to be an identified sample, which would be tested. The panel only showed AC failed to demonstrate burden 1.

Also, since Contador's defense did not raise the supplement scenario I wonder if they have no recourse to appeal on that basis as there's no procedural error.
mastersracer
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08 Feb 2012 15:08

If there is any judicial recourse possible, Antonio Rigozzi (who is one of Contador's lawyers and absolutely topnotch in this field) will find it.
Nilsson
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