ContadorÂ’s legal team hit back at WADA report

[Dr. Maserati]

I'm not defining or redefining anything. I am merely pointing out how inapproppriate the use of the adjetive "illegal" is when describing a substance that is specifically banned by WADA. WADA does not have the power to make the (ab)use of certain substance legal or illegal. Only The Law can do that.

The only thing WADA can do is ban a substance. Once the cyclist test positive the only thing the UCI can do is sanction the cyclist.

There's no prohibition, no (il)legality, no punishment, et cetera. The only thing these people can do is ruin your career or drag your face through the mud (aside from not allowing you to participate on races the UCI sanctions).

The highlighted is where you are very wrong.
Contador had a sample analyzed and it showed positive for a Prohibited Substance with no threshold thats on the list in a sport that he agreed to have a career.

He requested a separate analysis of his B sample - but that too came back positive for the same prohibited substance.

Now he will be afforded a chance to offer an explanation to a hearing of his federation to explain how the substance entered his system. He may be able to show that its a case of 'No Fault or Negligence' or 'No Significant Fault or Negligence'.

Can you point out a system that offers that many opportunities to clear your name?

 

[TubularBills]

The highlighted is where you are very wrong.
Contador had a sample analyzed and it showed positive for a Prohibited Substance with no threshold thats on the list in a sport that he agreed to have a career.

He requested a separate analysis of his B sample - but that too came back positive for the same prohibited substance.

Now he will be afforded a chance to offer an explanation to a hearing of his federation to explain how the substance entered his system. He may be able to show that its a case of 'No Fault or Negligence' or 'No Significant Fault or Negligence'.

Can you point out a system that offers that many opportunities to clear your name?

Bravo & Chapeau... succinct, poignant and convincing. Touche.

 

[GJB123]

The problem with this however is that they are acknowledged as legal proceedings, these sport proceedings. By regular judicial authorities, if I'm not mistaken these sport proceedings even need to follow art. 6 ECHR for fair proceedings

If that would be true, they would fail miserably in very respect. In this case, in Pelizottis case, in all other cases because their rules are seriously flawed in that respect. This is the point I have been trying to make all along, but it seems to be only comprehensible to a few. All others just go on saying that the rules are the rules and should be adhered to strictly (well not if they are wrong).

Regards
GJ

 

[Barrus]

If that would be true, they would fail miserably in very respect. In this case, in Pelizottis case, in all other cases because their rules are seriously flawed in that respect. This is the point I have been trying to make all along, but it seems to be only comprehensible to a few. All others just go on saying that the rules are the rules and should be adhered to strictly (well not if they are wrong).

Regards
GJ

Actually the proceedings before the sport tribunal in Pelizotti's case cannot be called unfair, With what (euro) rider would you call the sport tribunal proceedings unfair?

 

[Ferminal]

If that would be true, they would fail miserably in very respect. In this case, in Pelizottis case, in all other cases because their rules are seriously flawed in that respect. This is the point I have been trying to make all along, but it seems to be only comprehensible to a few. All others just go on saying that the rules are the rules and should be adhered to strictly (well not if they are wrong).

Regards
GJ

But hasn't there been enough Clenbuterol sanctions to suggest that the rules regarding the substance aren't flawed? The biopassport cases are a lot different, are they not, given that this year was the first time it had ever been tested in a court.

We've got the German Ponger, anyone else? What's the ratio like as far as positive A+B for Clen and how many actually end up with a sanction?

 

[L'arriviste]

We've got the German Ponger, anyone else?

My (cycling-only) database calls up these guys in relation to Clenbuterol:

Djamolidine Abdoujaparov (positive)
Alessandro Colo (positive)
Fuyu Li (positive)
Alberto Contador (positive)
Franck Vandenbroucke (possession)

 

[Ferminal]

http://sportsnickel.com/2010/09/30/...tive-and-what-it-really-means-for-tour-champ/

So that's 13 sanctions (not counting the Terror), minimum suspension 9 months.

+ Colo (1 year) would make 14.

 

[GJB123]

Actually the proceedings before the sport tribunal in Pelizotti's case cannot be called unfair, With what (euro) rider would you call the sport tribunal proceedings unfair?

Actually with every one of them. It is beyond ridiculous that sportsmen have to prove that they are actually innocent, because there is a presumption of guilt (also with the presiding judges) based on statistics and probabilities. I have stated before that if you can't exclude people ingesting banned substances by accident (like clenbuterol) than at least below certain thresholds the sportsman should get the benefit of the doubt. Proving months afterwards that you ingested it by accident is virtually impossible and thus not fair.

With the bio passport this is even more apparent. They haven't actually found any banned substances; they only think your blood values are suspicious and boom, you are guilty, get suspended and have to prove yourself the anomalies are actually no anomalies or what caused the anomalies. Again the burden of proof is shifted, wrongly IMO, to the sportsman, where the accuser/prosecutor should have the burden of proof.

Now I know cyclists signed up for this, but it is not as if they had much choice. Nit signing up is not competing at all. So I think that this part of the agreement between the UCI and the cyclist sgould be voided as it in clear breach of for example art. 6 of the EHCR.

Regards
GJ

PS Please note that this is irrespective of how much I actually believe AC's or any cyclist's excuse. Facts of the matter is, that it is not unlikely enough to be dismised out-of-hand and it is very much possible to ingest banned substances by accident. Those possibilities should be accounted for in the regulations as much as possible IMHO, otherwise you will inevitably end up punishing innocent people.

 

[GJB123]

But hasn't there been enough Clenbuterol sanctions to suggest that the rules regarding the substance aren't flawed? The biopassport cases are a lot different, are they not, given that this year was the first time it had ever been tested in a court.

We've got the German Ponger, anyone else? What's the ratio like as far as positive A+B for Clen and how many actually end up with a sanction?

What does the amount of cases prove with regard to the validity of the rule? We have people here taking the point of view that a rule is a rule and should be adhered to strictly, no matter what, even if it is flawed. Now what is the logic in that?

Regards
GJ

 

[biopass]

What does the amount of cases prove with regard to the validity of the rule? We have people here taking the point of view that a rule is a rule and should be adhered to strictly, no matter what, even if it is flawed. Now what is the logic in that?

Regards
GJ

How is it flawed?

Clenbuterol isnt found natural in the body.

Why should there be a theshold for a substance that isnt produced by the body?

 

[Ferminal]

What does the amount of cases prove with regard to the validity of the rule? We have people here taking the point of view that a rule is a rule and should be adhered to strictly, no matter what, even if it is flawed. Now what is the logic in that?

Regards
GJ

It shows that the rules have been "tested", does it not? How will the Contador case test the rules in a way that none of the others have done?

 

[GJB123]

How is it flawed?

Clenbuterol isnt found natural in the body.

Why should there be a theshold for a substance that isnt produced by the body?

Because it is obvious form case law that you can ingest it accidentally, unknowingly and then almost always in small doses. Why do I need to explain that concept over and over again? Can you read? It's fine if you disagree but stop making me explain over and over again.

Regards
GJ

 

[GJB123]

It shows that the rules have been "tested", does it not? How will the Contador case test the rules in a way that none of the others have done?

No, it proves that nobody has had the courage to take it to f.e. the European Human Rights Court. A lot of people said that transfer rules in football were incorrect, yet it took years before a footballer was prepared to take it to the European courts of justice. Did that prove that the rule was okay before then?

Regards
GJ

 

[Barrus]

Actually with every one of them. It is beyond ridiculous that sportsmen have to prove that they are actually innocent, because there is a presumption of guilt (also with the presiding judges) based on statistics and probabilities. I have stated before that if you can't exclude people ingesting banned substances by accident (like clenbuterol) than at least below certain thresholds the sportsman should get the benefit of the doubt. Proving months afterwards that you ingested it by accident is virtually impossible and thus not fair.

With the bio passport this is even more apparent. They haven't actually found any banned substances; they only think your blood values are suspicious and boom, you are guilty, get suspended and have to prove yourself the anomalies are actually no anomalies or what caused the anomalies. Again the burden of proof is shifted, wrongly IMO, to the sportsman, where the accuser/prosecutor should have the burden of proof.

Now I know cyclists signed up for this, but it is not as if they had much choice. Nit signing up is not competing at all. So I think that this part of the agreement between the UCI and the cyclist sgould be voided as it in clear breach of for example art. 6 of the EHCR.

Regards
GJ

PS Please note that this is irrespective of how much I actually believe AC's or any cyclist's excuse. Facts of the matter is, that it is not unlikely enough to be dismised out-of-hand and it is very much possible to ingest banned substances by accident. Those possibilities should be accounted for in the regulations as much as possible IMHO, otherwise you will inevitably end up punishing innocent people.

Actually the simple ingestion of something has nothing to do with the fairness of the proceedings, these violations of the riders are based upon strict liability, which is not really that strange and especially not something that is illegal

Concerning cases before the ECHR, I believe Rasmussen attempted to bring suit before them, but this was already thrown out in the prelimineary proceedings. I believe he based his case upon a breach of privacy with the where-abouts system. He was seen as not having a legitimate complaint

 

[Ferminal]

No, it porves that nobody has had the courage to take it to f.e. the European Human Rights Court. A lot of people said that transfer rules in football were incorrect, yet it took years before a footballer was prepared to take it to the European courts of justice. Did that prove that the rule was okay before then?

Regards
GJ

So is it fair until the highest possible court says otherwise, or unfair until then? Has it not been challenged further because the other 14 cases have neither the desire nor the resources to do so...

If say, this whole thing were to be deemed unfair, wouldn't it take the responsibility off the individual i.e. they are no longer liable for what they intake. It would challenge a lot more than just the Clen rule.

 

[GJB123]

Actually the simple ingestion of something has nothing to do with the fairness of the proceedings, these violations of the riders are based upon strict liability, which is not really that strange and especially not something that is illegal

Concerning cases before the ECHR, I believe Rasmussen attempted to bring suit before them, but this was already thrown out in the prelimineary proceedings. I believe he based his case upon a breach of privacy with the where-abouts system. He was seen as not having a legitimate complaint

If we ware to take it that the proceedings are similar or shoud adhere to due process rules for criminal proceedings (someone is getting punished after all) than it is unusual to say the least to use a strict liability based rule instead of a culpability based rule. I think that point still stands.

Regards
GJ

 

[biopass]

Because it is obvious form case law that you can ingest it accidentally, unknowingly and then almost always in small doses. Why do I need to explain that concept over and over again? Can you read? It's fine if you disagree but stop making me explain over and over again.

Regards
GJ

Ingest it accidentally?

Im sorry I cant take such statements serious. I mean Astana has one of the biggest budgets in pro cycling today, they should know what their riders are eating, and wich substances are found in their food. With only 39 seconds separating the top spots in the Tour, proper food planning can surely make the diffence between finishing top spot or second.

I simply dont buy the idea that todays million-dollar business pro cycling has become, top riders have no clue what they are eating. Eating the right way with the goal to maximize performance isnt exactly rocketscience anymore.

 

[L'arriviste]

Ingest it accidentally?

Im sorry I cant take such statements serious. I mean Astana has one of the biggest budgets in pro cycling today, they should know what their riders are eating, and wich substances are found in their food. With only 39 seconds separating the top spots in the Tour, proper food planning can surely make the diffence between finishing top spot or second.

I simply dont buy the idea that todays million-dollar business pro cycling has become, top riders have no clue what they are eating. Eating the right way with the goal to maximize performance isnt exactly rocketscience anymore.

I don't have a reference immediately available for this [EDIT: here it is] but I seem to recall that WADA considers any ingestion - accidental or otherwise - the athlete's responsibility - i.e. the athlete is ultimately responsible for his/her own body.

Therefore mitigating circumstances such as they are can only be used in representations made on the character of the penalty. I think that's fair because, unlike the criminal law, notions of the athlete's motivation, mentality and will are completely irrelevant.

Where I could see there being some sort of challenge is the accuracy of testing done at the lab and how other labs might not have picked up the evidence of clenbuterol. Not sure how they would construct a defence out of that.

 

[hrotha]

Ingest it accidentally?

Im sorry I cant take such statements serious. I mean Astana has one of the biggest budgets in pro cycling today, they should know what their riders are eating, and wich substances are found in their food. With only 39 seconds separating the top spots in the Tour, proper food planning can surely make the diffence between finishing top spot or second.

I simply dont buy the idea that todays million-dollar business pro cycling has become, top riders have no clue what they are eating. Eating the right way with the goal to maximize performance isnt exactly rocketscience anymore.

Is it reasonable to expect a team to test all the food their riders have during the season? Now I don't believe Contador is innocent even for a second, but if his story were true, there's not really anything he could have done to avoid the clen contamination. It was meat that supposedly met the EU health standards.

 

[Benotti69]

Is it reasonable to expect a team to test all the food their riders have during the season? Now I don't believe Contador is innocent even for a second, but if his story were true, there's not really anything he could have done to avoid the clen contamination. It was meat that supposedly met the EU health standards.

if he had not eaten the meat brought from South Amercia via Spain and ate whatever the chef purchased in Pau no probs.......

.......but back in the real world if his team were on top of their game they would know about how deep testing can go on a weekly, daily basis and be prepared for it with their transfusions

 

[biopass]

Is it reasonable to expect a team to test all the food their riders have during the season? Now I don't believe Contador is innocent even for a second, but if his story were true, there's not really anything he could have done to avoid the clen contamination. It was meat that supposedly met the EU health standards.

I dont expect Astana to test all the food they buy for the whole season. But if Astanas main objective for the season is to win the tour, i expect them to prepare their tourcampaign seriously, and not leave anything to coincidence.

 

[hrotha]

if he had not eaten the meat brought from South Amercia via Spain and ate whatever the chef purchased in Pau no probs.......

.......but back in the real world if his team were on top of their game they would know about how deep testing can go on a weekly, daily basis and be prepared for it with their transfusions

Ah, but you're cheating! You already know which steak had the clen (none; but just for argument's sake). What if it turned out the unbought Pau steak was the one with the clen and the Irún steak from South America was clean? Both are supposed to meet EU health regulations.

 

[Señor_Contador]

The highlighted is where you are very wrong.
Contador had a sample analyzed and it showed positive for a Prohibited Substance with no threshold thats on the list in a sport that he agreed to have a career.

He requested a separate analysis of his B sample - but that too came back positive for the same prohibited substance.

Now he will be afforded a chance to offer an explanation to a hearing of his federation to explain how the substance entered his system. He may be able to show that its a case of 'No Fault or Negligence' or 'No Significant Fault or Negligence'.

Can you point out a system that offers that many opportunities to clear your name?

You mean AFTER they leaked your positive test to the media, misinformed people that there was another obscure plasticizers test that you tested positive for and your boss goes on publicly stating that your country has a doping problem? Yeah, fo' sho!

Let me ask you something: Have you ever heard of character assassination? I mean… Alberto hasn't even been sanctioned yet and he's been "grilled" three times over.

That is "opportunity to clear your name" at its best.

 

[GJB123]

I dont expect Astana to test all the food they buy for the whole season. But if Astanas main objective for the season is to win the tour, i expect them to prepare their tourcampaign seriously, and not leave anything to coincidence.

Are you for real or just a bot spouting the required answers? It is utterly and completely ridiculous to expect sportsmen to question normal food produce that can be bought and eaten in a normal store by Joe the plumber.

Now it's Contador, but would the same apply for you for a lowly domestique for the Footon-team or any other sportsmen from a smaller, different sport? Because he or she will face the same kind of liability rules Contador is facing and you are not seriously suggesting that alle athletes do their own testing on all their food and drink prior to ingesting it. So yes, it is wholly to be expected that certain substances that are out and about in every day normal food and drink find their way in to athletes without those athletes actually being aware of it. And if you are not aware of it will become a bloody hard job to prove afterwards that it was this or that food.

This is exactly what I mean when I day that the doping hunt and doping rules as a result have grown way out of control.

Regards
GJ

 

[D-Queued]

Are you for real or just a bot spouting the required answers? It is utterly and completely ridiculous to expect sportsmen to question normal food produce that can be bought and eaten in a normal store by Joe the plumber.

Now it's Contador, but would the same apply for you for a lowly domestique for the Footon-team or any other sportsmen from a smaller, different sport? Because he or she will face the same kind of liability rules Contador is facing and you are not seriously suggesting that alle athletes do their own testing on all their food and drink prior to ingesting it. So yes, it is wholly to be expected that certain substances that are out and about in every day normal food and drink find their way in to athletes without those athletes actually being aware of it. And if you are not aware of it will become a bloody hard job to prove afterwards that it was this or that food.

This is exactly what I mean when I day that the doping hunt and doping rules as a result have grown way out of control.

Regards
GJ

You seem to have whipped yourself into a bit of a frenzy here.

This is more about sporting rules than law.

There are suspensions, not sentences.

Doping has long been out of control, which is why WADA was created. Cycling is the Typhoid Mary that led to WADA.

You don't have to cycle. If you want to, you have to agree to follow the rules.

Perhaps you don't have a UCI license, but I do. It says, "The holder is subject to the Regulatations of the UCI and accepts any drug and blood tests for which they provide as well as the exclusive competence of the CAS."

I signed that license just like Aldirto had to sign his.

If you don't like the system, then get involved. Do the research and submit papers. This is how new tests are accepted, for example.

There is a regular process to review the rules and standards. Thus far, it does not appear that there have been many good arguments put forth with respect to some sort of world epidemic of accidental Clenbuterol contamination.

If it were something that you were a bit more familiar with (i.e. you have heard about it before), like Uranium, which is a naturally occuring substance, would you be comfortable with simple detection and no allowable limit?

Dave.