Official Alberto Contador hearing thread

[Susan Westemeyer]

Everyone stay on topic and stop with the personal stuff.

Susan

 

[LaFlorecita]

*** several issues from the english version are standing out to me:

- what procedural reasons did cas panel use to not allow ahenden's cross examination ?

- it appears wada did file a formal complaint to cas general secretary that indirectly questioned barak's ethics.

- ashenden is a blood experts, so not allowing his cross examination can only be seen that he had evidence of blood transfusion from the blood passports and that evidence was rejected by the panel ?

Look at what Publicus wrote:

EDIT: And for the record, I seem to recall lots of folks around here suggesting that it was the Contador team leaking during the actual hearing. It seems to me if that were the case, we would have known about the general facts of this argument during that time. From a legal stand point, I understand why CAS excluded Asheden's testimony (little probative value (little more than speculation) and highly prejudicial to AC) and I don't think there will be a strong basis for appeal (one day spike, non-validated test). I think WADA's actions here are deplorable (they are definitely trying to cast dispersions on Contador here).

Bolded answers your first question.

 

[Publicus]

As opposed to the hearsay that Contador might have found a contaminated cow when test results show that it's almost impossible?

First off, that's not hearsay. Secondly, AC would have to provide evidence around his theory of the case, otherwise it too would have little probative value (circumstantial evidence is still evidence but it doesn't have the same probative value as direct (it's the difference between saying I ate tainted beef and providing a sample of the tainted beef). The distinction, and this is a crucial one, is that nothing in AC's theory would be prejudicial to WADA's case. Judges ALWAYS have to weigh the probative value of the evidence against the prejudicial value to a defendant.

I presume, based on the article, the panel concluded that WADA still had the opportunity to poke holes in AC's theory about how the plasticizers entered his system by cross examining his expert on his theory of why the plasticizers were present. In short they have the opportunity to rebut his testimony and minimize the harm. Frankly, I don't think this means AC gets off, but it certainly bodes well for him.

 

[balkou]

The CAS will set Becca straight only if they ban contador.

unfortunately, becca's reasoning was merely plausible.
why a training camp in Israel?

Good weather maybe? The potential flirt with an Israeli sponsor?

Anyway, anyone who knows how the arbitrators function and/or how each decision they take can put their future in the same work in jeopardy, if unjustified, then knows that Becca said something really idiotic. Not that I expected something better than him. He didn't hesitate abandoning the man the set-up his squad for him, make silly statements is enough easier.

 

[LaFlorecita]

EDIT: And for the record, I seem to recall lots of folks around here suggesting that it was the Contador team leaking during the actual hearing. It seems to me if that were the case, we would have known about the general facts of this argument during that time. From a legal stand point, I understand why CAS excluded Asheden's testimony (little probative value (little more than speculation) and highly prejudicial to AC) and I don't think there will be a strong basis for appeal (one day spike, non-validated test). I think WADA's actions here are deplorable (they are definitely trying to cast dispersions on Contador here).

Exactly. They have no evidence whatsoever it might have gone that way, instead of the normal way. They're just trying to find an explanation for the fact the clenbuterol wasn't present the day of the alleged positive plasticizer test, but it's all speculation, and, as you say, highly prejudicial. The fact remains that the plasticizer positive and the clenbuterol positive don't have a demonstrable link.

 

[python]

Look at what Publicus wrote:


Bolded answers your first question.

yeah, i saw it after i typed my question.

as a legal term ' low probative value' should have been based on some data that ashenden/wada must have presented in the written submittals. i just would like to understand what that data was ? as i said, ashenden is a blood expert, not a plasticizer expert, so his evidence and the considerations of it's probative value could have only be based on blood passport.

i can only conclude that the cas panel simply did not see any problems with blood passport ?

 

[LaFlorecita]

Good weather maybe? The potential flirt with an Israeli sponsor?

Riis has been searching for a Japanese or Israeli sponsor. That's why he has attracted Miyazawa and Margaliot.

 

[perico]

As opposed to the hearsay that Contador might have found a contaminated cow when test results show that it's almost impossible?

I sometimes get confused with the legalities when comparing this type of case to that of a criminal case, but in a court of law, the burden of proof lies with the prosecution. So legally, the defense can throw out any sort of wild theories to make their case. The prosecution, however, can not rely on hearsay without in being challenged in a court of law if they want to convict. It's why seemingly damning evidence is thrown out in court every day- because it is hearsay.

 

[Publicus]

yeah, i saw it after i typed my question.

as a legal term ' low probative value' should have been based on some data that ashenden/wada must have presented in the written submittals. i just would like to understand what that data was ? as i said, ashenden is a blood expert, not a plasticizer expert, so his evidence and the considerations of it's probative value could have only be based on blood passport.

i can only conclude that the cas panel simply did not see any problems with blood passport ?

probative adj. in evidence law, tending to prove something. Thus, testimony which is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel.

probative value n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed against prejudice in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions.

Hopefully those two definitions help understand the point I'm trying to make. I don't think there was anything more than the rather detailed scenario that WADA laid out in the press about how the clenbuterol entered his system.

 

[Publicus]

I sometimes get confused with the legalities when comparing this type of case to that of a criminal case, but in a court of law, the burden of proof lies with the prosecution. So legally, the defense can throw out any sort of wild theories to make their case. The prosecution, however, can not rely on hearsay without in being challenged in a court of law if they want to convict. It's why seemingly damning evidence is thrown out in court every day- because it is hearsay.

It is an evidentiary rule. Hearsay can only be introduced for certain limited purposes (by either party). This is circumstantial evidence.

Also, in this case, I believe CAS was hearing it as a matter of first impression (i.e., not as an appeal), which allowed the introduction of new evidence not presented at RFEC (plasticizers). AC had the burden of establishing how the clenbuterol entered his system (that it was through contaminated meat) and I presume WADA presented the plasticizers to rebut his claims.

 

[LaFlorecita]

I sometimes get confused with the legalities when comparing this type of case to that of a criminal case, but in a court of law, the burden of proof lies with the prosecution. So legally, the defense can throw out any sort of wild theories to make their case. The prosecution, however, can not rely on hearsay without in being challenged in a court of law if they want to convict. It's why seemingly damning evidence is thrown out in court every day- because it is hearsay.

Yeah, but in this case, it's sports law, and then the evidence is that the person tested positive. So the defense has to proof they didn't dope, which can be quite difficult. The only thing the prosecutors have to do, is show that the defense's "proof" isn't actual proof, which is easy.

 

[python]

Hopefully those two definitions help understand the point I'm trying to make. I don't think there was anything more than the rather detailed scenario that WADA laid out in the press about how the clenbuterol entered his system.

thanks. these definitions clarify one thing to me i was not clear on - 'probative' is not necessarily based on a probability but rather relevance and being material. i will have to ponder over this for a bit in light of what the article said about the 2 tests on different days with different substances detected...there still has to be something in ashenden's theory that's missing from the article and disqualified him in the eyes of the panel.

 

[L'arriviste]

thanks. these definitions clarify one thing to me i was not clear on - 'probative' is not necessarily based on a probability but rather relevance and being material. i will have to ponder over this for a bit in light of what the article said about the 2 tests on different days with different substances detected...there still has to be something in ashenden's theory that's missing from the article and disqualified him in the eyes of the panel.

I'm probably just echoing you here, but if Ashenden was WADA's expert witness, how could his testimony not be probative? If a theory is both valid in the opinion of an expert and possible within the framework of the facts, why not hear it?

These are rhetorical questions, of course, because now apparently we'll never know. The thing with these quasi-legal arbitrations is that I just don't like how the key decisions in the process are not made public.

 

[python]

,.....and I presume WADA presented the plasticizers to rebut his claims.

that's correct AND - very import - as i mentioned earlier, a new angle on contador's blood passport that ashenden is an expert in (wada's theory of a 2-step transfusion involving 1st rbcs and a day later plasma injection wada believes was the source of clen)

both theories - the plastcizer and blood passport - must be credible to support wada scenarion. it appears, that blood passport weakness has ruined corroborative
value of the plasticize tests...i did point to this earlier as weakness of the plasticizer test - crucially depending on the passport b/c it's the test wada itself rejected as a way to go forward.

 

[Nilsson]

I'm probably just echoing you here, but if Ashenden was WADA's expert witness, how could his testimony not be probative? If a theory is both valid in the opinion of an expert and possible within the framework of the facts, why not hear it?

These are rhetorical questions, of course, because now apparently we'll never know. The thing with these quasi-legal arbitrations is that I just don't like how the key decisions in the process are not made public.

Because Ashenden can't state that at the same time the biological passport is great, has to conclude Contador didn't exceed any boundaries there, and create theory about separate infusion of RBC and plasma, which isn't based on any facts and therefore nothing more than a nice hunch to fulfill the story...

 

[Moose McKnuckles]

I'm probably just echoing you here, but if Ashenden was WADA's expert witness, how could his testimony not be probative? If a theory is both valid in the opinion of an expert and possible within the framework of the facts, why not hear it?

Well, I can tell you this from my experience as a testifying expert on statistical issues. In the US, experts are subject to the Daubert standard. In other words, simply because the expert has a theory does not automatically permit said expert to testify. The expert's theory must be falsifiable, testable, and refutable. It also must have been subject to peer review. In other words, an expert cannot introduce a methodology/theory that has not been subjected to any testing. It is my understanding that Ashenden's theory does not meet this standard, since no test for his theory has yet been approved.

 

[LaFlorecita]

Well, I can tell you this from my experience as a testifying expert on statistical issues. In the US, experts are subject to the Daubert standard. In other words, simply because the expert has a theory does not automatically permit said expert to testify. The expert's theory must be falsifiable, testable, and refutable. It also must have been subject to peer review. In other words, an expert cannot introduce a methodology/theory that has not been subjected to any testing. It is my understanding that Ashenden's theory does not meet this standard, since no test for his theory has yet been approved.

Thanks for the info.

 

[hrotha]

Because Ashenden can't state that at the same time the biological passport is great, has to conclude Contador didn't exceed any boundaries there, and create theory about separate infusion of RBC and plasma, which isn't based on any facts and therefore nothing more than a nice hunch to fulfill the story...

Ashenden is already on record saying the passport can be beaten.

 

[python]

Ashenden is already on record saying the passport can be beaten.

that's true but in a specific case of contador he has to bring credible data that supported the very detailed wada theory of the 2-step transfusion.

either he could not convince the panel he has the credible data or he was snubbed according to wada. i truly and honestly don't know which one but i pointed out long ago that there are several random factors (like the availability of specific blood tests around the fated dates - 20, 21st and 22 of july - to make the trasfusion theory stick. if wada is out of luck or contador doped and is lucky not to be tested on those days, is part of the mystery of the case...

 

[biopass]

So according to reports, CAS believes Clen is extracted by the human body, at the same rate/speed as DEHP.

Its gonna be hilarious when WADA takes the case to the Swiss legal court

 

[patricknd]

I'm probably just echoing you here, but if Ashenden was WADA's expert witness, how could his testimony not be probative? If a theory is both valid in the opinion of an expert and possible within the framework of the facts, why not hear it?

These are rhetorical questions, of course, because now apparently we'll never know. The thing with these quasi-legal arbitrations is that I just don't like how the key decisions in the process are not made public.

sounds like the fix is in on this one. exclude evidence as not probative and you don't have to answer for a screwy verdict, you just spout the party line about " the decision was based on the available evidence."
problem is should the jury be deciding what evidence is presented? seems and easy way to stack the deck....

 

[Publicus]

sounds like the fix is in on this one. exclude evidence as not probative and you don't have to answer for a screwy verdict, you just spout the party line about " the decision was based on the available evidence."
problem is should the jury be deciding what evidence is presented? seems and easy way to stack the deck....

That doesn't mean the fix is in. The panel must have decided that the prejudicial value exceeded the probation value. Those types of decisions are made everyday. Unless there is demonstrable error, I doubt an appeal court would overturn it (would not be reviewed de novo). I think this is getting rather overblown. WADA was allowed to cross examine AC's expert who testified about the plasticizers, so I'm sure they were able to poke some holes in his theory/testimony.

 

[Nilsson]

I'm probably just echoing you here, but if Ashenden was WADA's expert witness, how could his testimony not be probative? If a theory is both valid in the opinion of an expert and possible within the framework of the facts, why not hear it?

These are rhetorical questions, of course, because now apparently we'll never know. The thing with these quasi-legal arbitrations is that I just don't like how the key decisions in the process are not made public.

So according to reports, CAS believes Clen is extracted by the human body, at the same rate/speed as DEHP.

Its gonna be hilarious when WADA takes the case to the Swiss legal court

DEHP clearance is undeniably faster than clenbuterol, but the times of peak concentration in urine do not differ that much. Maybe a few hours but certainly not twenty four...

 

[Moose McKnuckles]

sounds like the fix is in on this one. exclude evidence as not probative and you don't have to answer for a screwy verdict, you just spout the party line about " the decision was based on the available evidence."
problem is should the jury be deciding what evidence is presented? seems and easy way to stack the deck....

No. Evidence that does not meet certain standards can be excluded. I don't know the laws in Europe, but in the US, evidence is subject to Rule 702. You don't get to just throw evidence in front of a jury. The judge acts as a gatekeeper to determine what evidence is provided. Further, CAS has no reason to risk its reputation in this matter.

 

[Nilsson]

Ashenden is already on record saying the passport can be beaten.

I know, but it doesn't make his argument stronger, at least not from a legal point of view. It's like breaking in without signs of a break in. Ashenden would probably say it's possible you left the door open...