Official Alberto Contador hearing thread

[Dr. Maserati]

this was a very simple question. no need to read into a questioner's stae too much...

My apologies - its just usually if someone has posted something that was already said before people ignore it, they don't demand to know why the person posted, thats all.

as to your 'we have the conclusive definitions from cas' you're simply confused or somehow imagine you discovered something new.

these 'definitions from cas' are identical to wada rules.


you discovered zero as far as i can see.

if you have found something special, i'd be interested to read it. no bad intentions at all.

Perhaps I am confused - if I was then I wasn't the only one though.
Some people were bringing up the German ponger as an example of how AC could get off. But as his case never went before CAS it would fall on CAS caselaw to decide the burden.

So, here is the WADA code:

If the Rider establishes in an individual case that he bears No Fault or Negligence, the otherwise applicable period of Ineligibility shall be eliminated. When a Prohibited Substance or its Markers or Metabolites is detected in a Rider’s Sample as referred to in article 21.1 (presence of a Prohibited
Substance), the Rider must also establish how the Prohibited Substance entered his system in order to have the period of Ineligibility eliminated. In the event this article is applied and the period of Ineligibility otherwise applicable is eliminated, the anti-doping rule violation shall not be considered a violation for the limited purpose of determining the period of Ineligibility for multiple violations under articles 306 to 312.

Maybe its just me, but the CAS judgement is more compelling.
It clears up exactly what the respondent must establish.

122 Accordingly, relying on a long line of CAS cases (see e.g. CAS2006/A/1067 IRB v J. Keyter, para 6.8) and on the WADA code principals related to the athletes' fault or negligence, the Panel observes that the Player, in order to establish that he bears no fault or negligence, must prove:
(a) how the prohibited substances came to be present in his body and, thus, in his urine samples, and
(b) that he did not know or suspect, and could not reasonably known or suspected even with the exercise of utmost caution, that he had used or been administered the prohibitive substance

123 The proof of both (a) and (b) would eliminate the Player's two year sanction.

 

[python]

My apologies - its just usually if someone has posted something that was already said before people ignore it, they don't demand to know why the person posted, thats all.

i see where you're coming from but somehow you put too much 'feeling' into my question. i did not 'demand' i asked. i thought it was a polite, impassioned question.

perhaps I am confused - if I was then I wasn't the only one though.

that's not a problem. the issue i saw was that the very things you quoted have been discussed very extensively before and i saw no news.

i asked, where's the news. not more and not less.

Some people were bringing up the German ponger as an example of how AC could get off. But as his case never went before CAS it would fall on CAS caselaw to decide the burden.

a fair point.however, the ponger was judged by his federation on the rules that are identical to the wada rules. i checked them as i initially suspected they are different. not at all. since the german ping pong fed is the signatory to wada code, their rules re. strict liability and such are identical to wada, in spirit and letter.

all i'm trying to say is, that each cas panel sets out to quote wada as a substantive law they are bound by. it's the individual arbs interpretations of the wada code that surprise occasionally, very rarely indeed.

 

[doolols]

that's not a problem. the issue i saw was that the very things you quoted have been discussed very extensively before and i saw no news.

Now I'm confused. Whenever I've posited that AC needs to prove that he ate contaminated meat, I've been slapped down, and we've launched into the "balance of probabilities" debates. What the good Doctor has shown is that there is good evidence for a requirement for proof, which makes far more logical sense.

 

[Merckx index]

Now I'm confused. Whenever I've posited that AC needs to prove that he ate contaminated meat, I've been slapped down, and we've launched into the "balance of probabilities" debates. What the good Doctor has shown is that there is good evidence for a requirement for proof, which makes far more logical sense.

I think there are two issues confusing people here, the nature of proof, and the degree of proof. Wrt the nature of proof, there is direct and indirect, or more precisely, a spectrum. The most direct proof would be to obtain the original meat sample Bert ate and show it was contaminated. A slightly less direct means would be to show that others who ate the same meat also tested positive. Lacking this, Bert must try to obtain indirect proof, by arguing from established or likely facts and logic to show that contamination is more likely than any other alternative. This is just like a murder case, where the most direct proof would be witnessing of the act, while indirect proof is established by eliminating all the alternatives.

The other issue is the degree of proof. Science, at least in principle, is never 100% certain of anything. It’s a matter of probability. I can understand the confusion here, because in the common vernacular, and often in science as well, the word “proof” is used only when the evidence suggests something has a very high probability, more than 99%. We don’t ordinarily say that we have proven something to be the case if all we can establish is that it’s slightly more likely than the alternative. This, I think, is how you understand the word “proof”.

But the looser sense is how CAS is using the word proof here. Bert doesn’t have to prove that he ate contaminated meat beyond a reasonable doubt. He only has to prove it to some standard between that and balance of probabilities, or 51%. And again, this is common in the legal system. Murder has to be proven beyond a reasonable doubt, but a civil suit only has to be proven to a balance of probability.

 

[doolols]

Thanks for taking the time to explain. I suppose it's the old Sherlock Holmes quote: "When you have eliminated the impossible, whatever remains, however improbable, must be the truth". And AC's lawyers are trying to prove that doping was impossible.

 

[Dr. Maserati]

I think there are two issues confusing people here, the nature of proof, and the degree of proof. Wrt the nature of proof, there is direct and indirect, or more precisely, a spectrum. The most direct proof would be to obtain the original meat sample Bert ate and show it was contaminated. A slightly less direct means would be to show that others who ate the same meat also tested positive. Lacking this, Bert must try to obtain indirect proof, by arguing from established or likely facts and logic to show that contamination is more likely than any other alternative. This is just like a murder case, where the most direct proof would be witnessing of the act, while indirect proof is established by eliminating all the alternatives.

The other issue is the degree of proof. Science, at least in principle, is never 100% certain of anything. It’s a matter of probability. I can understand the confusion here, because in the common vernacular, and often in science as well, the word “proof” is used only when the evidence suggests something has a very high probability, more than 99%. We don’t ordinarily say that we have proven something to be the case if all we can establish is that it’s slightly more likely than the alternative. This, I think, is how you understand the word “proof”.

But the looser sense is how CAS is using the word proof here. Bert doesn’t have to prove that he ate contaminated meat beyond a reasonable doubt. He only has to prove it to some standard between that and balance of probabilities, or 51%. And again, this is common in the legal system. Murder has to be proven beyond a reasonable doubt, but a civil suit only has to be proven to a balance of probability.

Obviously Contador does not have a sample of the meat, so he will rightly introduce documentation, statistics, procedure etc.

Overall what you say is correct - although I don't know where this idea of 51% came in, that is not the CAS standard.

In the earlier document I linked:

6.4 Pursuant to Article 21.3.1 of the IRB Regulations, when the burden of proof is upon the athlete to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a “balance of probability”. The balance of probability standard – set forth also by the WADC and by the CAS jurisprudence – means that the athlete alleged to have committed a doping violation bears the burden of persuading the judging body that the occurrence of a specified circumstance is more
probable than its non-occurrence.

 

[Publicus]

My apologies - its just usually if someone has posted something that was already said before people ignore it, they don't demand to know why the person posted, thats all.




Perhaps I am confused - if I was then I wasn't the only one though.
Some people were bringing up the German ponger as an example of how AC could get off. But as his case never went before CAS it would fall on CAS caselaw to decide the burden.

So, here is the WADA code:


Maybe its just me, but the CAS judgement is more compelling.
It clears up exactly what the respondent must establish.

The standard of proof does not change based on the forum. Proof/establish are the same standard.

 

[Publicus]

Obviously Contador does not have a sample of the meat, so he will rightly introduce documentation, statistics, procedure etc.

Overall what you say is correct - although I don't know where this idea of 51% came in, that is not the CAS standard.

In the earlier document I linked:

Burden of persuasion is generally the standard applied in civil cases, which is generally considered (in legal parlance) to be more than likely (i.e., greater than 50%). Much lower threshold than beyond a reasonable doubt standard, which applies in criminal cases (because it involves the possible forfeiture of one's freedom (i.e., incarceration)).

 

[RownhamHill]

Originally Posted by RownhamHill
Which probably explains why they didn't do that as far as anyone knows, and have accepted the premise that the Clen came from contamination on the 21st!

You're right this is an internet forum - I trust CAS to fully understand the difference that different labs can detect different amounts of clenbuterol.

CAS have made a decision? And they accepted contamination.
Case closed - good luck to Contador.

Ermm, just to clarify, the 'they' in my quote who appear to have accepted that premise refers to WADA and WADA's laywers, not CAS, based on what I understand their case to be - sorry I thought that was fairly clear, but sorry for any confusion caused.

 

[python]

Now I'm confused. Whenever I've posited that AC needs to prove that he ate contaminated meat, I've been slapped down, and we've launched into the "balance of probabilities" debates. What the good Doctor has shown is that there is good evidence for a requirement for proof, which makes far more logical sense.

as other's explained, the word 'proof' in that particular cas ruling could be replaced by a number of other words which would have the same meaning when immersed into the specific context. i read dozens of cas rulings, not just in english, they often use slightly different way to describe the same underlying wada rules. i was not trying to be cheeky when i saw no new or fresh passages in the quotes posted by the doc.

the important issue is what the proof should be based on - the standard of proof - or the criteria required to establish the proof.

to make a personal example. i often take a verbal assurance or a recommendation from several reliable and highly trusted friends as a proof enough for certain actions. their word is all the proof i need.

another frequently misunderstood yet touted indiscriminately simplistic phrase (and, yes, it may cause a confusion) is this, 'it is up to contador to prove he did this or that'.

it's true enough, as can be seen from the quoted cas passages, that ultimately, it's contador's responsibility to show why he's not guilty. but wada-prescibed decision making rules also allow for SHIFTING the burden of proof from one party to another and - very important - wada and the corresponding cas rules require different standard of proof for achieving the shift.

this has been discussed before, of course, but in a nutshell, when contador failed a test the burden was on him. to shift it back to wada, he has to prove (on balance of probabilities standard - '51%') why he has no fault or negligence. had he failed it, the case would have been over long ago.

it appears (but i really don't know), he was able to do that. that's how wada 2-step transfusion theory was brought forward.

now the fight (in my limited understanding) is whether wada had proven (demonstrated etc) using yet another more demanding standard of proof ('comfortable satisfaction of the panel') their proposed 2-step transfusion theory.

i'm not a legal expert - anyone feel free to correct me.

 

[Nilsson]

Obviously Contador does not have a sample of the meat, so he will rightly introduce documentation, statistics, procedure etc.

Overall what you say is correct - although I don't know where this idea of 51% came in, that is not the CAS standard.

In the earlier document I linked:

It actually is, according to CAS's interpretation in the (very similar, in terms of lacking 'proof' and multiple possible theories) Gasquet-case. I already gave it to you once (post 832) and you probably missed it again when you did your own research, but I don't mind to quote it again...

And furthermore Art. 3.1 of the WADA Code, which provides that:
“Where the Code places the burden of proof upon the Athlete or other Person
alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability…”

5.9. In view of these provisions, it is the Panel’s understanding that, in case it is offered several alternative explanations for the ingestion of the prohibited substance, but it is satisfied that one of them is more likely than not to have occurred, the Player has met the required standard of proof regarding the means of ingestion of the prohibited substance. In that case, it remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the Panel to be less likely to have occurred. In other words, for the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The Player thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.[/B]

This is the whole case, from 2009 http://www.tas-cas.org/d2wfiles/document/3862/5048/0/Award2019262020193020INTERNET.pdf

 

[doolols]

Python and Nilsson - thanks for your patience in explaining.

 

[Dr. Maserati]

as other's explained, the word 'proof' in that particular cas ruling could be replaced by a number of other words which would have the same meaning when immersed into the specific context. i read dozens of cas rulings, not just in english, they often use slightly different way to describe the same underlying wada rules. i was not trying to be cheeky when i saw no new or fresh passages in the quotes posted by the doc.

the important issue is what the proof should be based on - the standard of proof - or the criteria required to establish the proof.

to make a personal example. i often take a verbal assurance or a recommendation from several reliable and highly trusted friends as a proof enough for certain actions. their word is all the proof i need.

another frequently misunderstood yet touted indiscriminately simplistic phrase (and, yes, it may cause a confusion) is this, 'it is up to contador to prove he did this or that'.

it's true enough, as can be seen from the quoted cas passages, that ultimately, it's contador's responsibility to show why he's not guilty. but wada-prescibed decision making rules also allow for SHIFTING the burden of proof from one party to another and - very important - wada and the corresponding cas rules require different standard of proof for achieving the shift.

this has been discussed before, of course, but in a nutshell, when contador failed a test the burden was on him. to shift it back to wada, he has to prove (on balance of probabilities standard - '51%') why he has no fault or negligence. had he failed it, the case would have been over long ago.

it appears (but i really don't know), he was able to do that. that's how wada 2-step transfusion theory was brought forward.

now the fight (in my limited understanding) is whether wada had proven (demonstrated etc) using yet another more demanding standard of proof ('comfortable satisfaction of the panel') their proposed 2-step transfusion theory.

i'm not a legal expert - anyone feel free to correct me.

This is not the case.
Perhaps it was written in haste but your post suggests there is a back and forth on each side to establish their case.

When an athlete tests positive it is up to UCI (or anti-doping authority) to ensure that the there is indeed an AAF, to the "comfortable satisfaction" of the panel.

Once that is done the AAF is upheld, the panel then decide what sanctions need to be imposed. For AC, first time offence, 2 years, (minus any time suspended) - then it falls on AC to show that they bare No Fault or Negligence.

 

[LaFlorecita]

This is not the case.
Perhaps it was written in haste but your post suggests there is a back and forth on each side to establish their case.

When an athlete tests positive it is up to UCI (or anti-doping authority) to ensure that the there is indeed an AAF, to the "comfortable satisfaction" of the panel.

Once that is done the AAF is upheld, the panel then decide what sanctions need to be imposed. For AC, first time offence, 2 years, (minus any time suspended) - then it falls on AC to show that they bare No Fault or Negligence.

I think python means that once Contador shows there's >50% chance his theory is true, WADA has to show that's not the case to have him sanctioned. So the burden of proof shifts from AC to WADA.

Pretty worrying, as well, is that you're not sure what sex AC is.

 

[python]

This is not the case.
Perhaps it was written in haste but your post suggests there is a back and forth on each side to establish their case.

no it was not written in haste. if you don't admit that there is 'back and forth' during the hearing you are confused even more than i initially assumed.

When an athlete tests positive it is up to UCI (or anti-doping authority) to ensure that the there is indeed an AAF, to the "comfortable satisfaction" of the panel.

this is another of your little cute motherhoods they show what i said above - confusion.

it's written all over the wada and the uci rules - once an athlete tests positive, the burden is on him. then the process is open to ensure an aaf. and yes this seems another news you just discovered. thank you very for letting us know.

Once that is done the AAF is upheld, the panel then decide what sanctions need to be imposed.

now you are talking to yourself - there was nothing in my post about a sanction.

 

[Dr. Maserati]

It actually is, according to CAS's interpretation in the (very similar, in terms of lacking 'proof' and multiple possible theories) Gasquet-case. I already gave it to you once (post 832) and you probably missed it again when you did your own research, but I don't mind to quote it again...

And furthermore Art. 3.1 of the WADA Code, which provides that:
“Where the Code places the burden of proof upon the Athlete or other Person
alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability…”

5.9. In view of these provisions, it is the Panel’s understanding that, in case it is offered several alternative explanations for the ingestion of the prohibited substance, but it is satisfied that one of them is more likely than not to have occurred, the Player has met the required standard of proof regarding the means of ingestion of the prohibited substance. In that case, it remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the Panel to be less likely to have occurred. In other words, for the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The Player thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.[/B]

This is the whole case, from 2009 http://www.tas-cas.org/d2wfiles/document/3862/5048/0/Award2019262020193020INTERNET.pdf

Thank you. Publicus explained it earlier, it is appears a (common) legal standard, (I read some cool latin word somehwere)

Where there appeared confusion earlier was that a 51% was put forth as a standard for one scenario over another - when it is actually being applied to what Contador has to prove with regards contamination.
That food contamination is "more likely than not to have occurred".

 

[python]

I think python means that once Contador shows there's >50% chance his theory is true, WADA has to show that's not the case to have him sanctioned. So the burden of proof shifts from AC to WADA.

Pretty worrying, as well, is that you're not sure what sex AC is.

exactly. and it was not too complicated.

 

[Dr. Maserati]

no it was not written in haste. if you don't admit that there is 'back and forth' during the hearing you are confused even more than i initially assumed.

this is another of your little cute motherhoods they show what i said above - confusion.

it's written all over the wada and the uci rules - once an athlete tests positive, the burden is on him. then the process is open to ensure an aaf. and yes this seems another news you just discovered. thank you very for letting us know.

now you are talking to yourself - there was nothing in post about a sanction.

Python, if you were confident in your position you would show it, not berate anyone who questions the process or write long posts that neither link to anything you suggest or back up your claims. You are attempting to rely on some perceived reputation that you have - which you are ruining by personal comments and often being shown to be incorrect.

It suggests some emotional attachment to a particular outcome -quite astonishing as you used to be a good and knowledgeable poster.

Take a lesson from Nilsson. They do not try and impress with some unprovable facts of how many documents they have read or how much experience they have. They provide links (and quoted passages) without comment. I am quite happy to be shown the correct information, as I am here to learn and understand the process.


As to "back and forth" on who must prove their case - this is the format on how CAS decides a case (from the Gasquet case)

5.1. The main issues to be resolved by the CAS Panel are:
A. Has there been an adverse analytical finding with respect to the Player’s urine sample?
B. Is the urine sample to be considered as having been taken in or out of competition?
C. If a doping offence has been committed, can the Player prove, considering the required standard of evidence, how the prohibited substance entered his system?
D. If the Player can meet the relevant requirements of evidence to the prior question, was he acting with no fault or negligence or with no significant fault or negligence?
E. In case applicable, what must be the sanction imposed on the Player? Particularly, which duration would a ban on the Player’s eligibility need to have, when would such ban start to run, and which results of the Player would have to be disqualified, leading to loss of prize money and ranking points?
F. May such sanction be reduced due to reasons of proportionality

 

[python]

Python, if you were confident in your position you would show it, not berate anyone who questions the process or write long posts that neither link to anything you suggest or back up your claims.

my post clearly invited comments.what you did was misinterpreted simple well known things without showing why. when someone does that, without backing their position, the word is confusion. just like you showed several times in this thread, and even admitting that. if you perceive this as berating you, need to look inside.

and often being shown to be incorrect.

so far you failed to show me incorrect whereas i and others showed how many times you've been wrong - examples are above for all to see.

It suggests some emotional attachment to a particular outcome

i already addressed once your attempts to get personal and misinterpret my contributions. nothing good will come out of it.

perhaps you're a little worried i decided to expose your confusion. hang on.

what you quoted is irrelevant to the point i was making - about shifting burden of proof - if required.

 

[Dr. Maserati]

Python and Nilsson - thanks for your patience in explaining.

As has been highlighted "proof' is tricky to establish in this case (and indeed in many cases).
There is no 'evidence' in this case (it was eaten) - so what the CAS panel has to decide on is the technical and statistical information and then apply the established legal definitions.
This is not unusual - as, for example, the panel will not see ACs urine sample and tests it. They will judge on the available documentation and that proper procedure was applied to satisfy that standard of being "comfortably satisfied".


Why all this is important to be discussed is because it shows that any CAS decision has been vigorously applied to proper and legal standards - and restores a level of confidence in any findings.
This isn't 3 men sitting around a table giving a gut decision.

And as you can see there is a lot of information to apply - which also shows why it can take a long amount of time to come to a fair and legally sustainable decision.

 

[python]

Python and Nilsson - thanks for your patience in explaining.

not at all.

the biggest challenges in this case as far as i can judge from the leaked information, are

for contador to 'prove' (which given the standard of prove) means that the likeliest route of clen in his system was meat contamination. since the direct evidence (meat) is unavailable, he has to show one-by-one that the other possibilities are less likely'.

for wada, since one of the possibilities involves a blood transfusion, to 'prove' it was the case over the contamination to the comfortable satisfaction of the panel.

 

[Publicus]

This is not the case.
Perhaps it was written in haste but your post suggests there is a back and forth on each side to establish their case.

When an athlete tests positive it is up to UCI (or anti-doping authority) to ensure that the there is indeed an AAF, to the "comfortable satisfaction" of the panel.

Once that is done the AAF is upheld, the panel then decide what sanctions need to be imposed. For AC, first time offence, 2 years, (minus any time suspended) - then it falls on AC to show that they bare No Fault or Negligence.

You both correct and wrong at the same time. Think about a criminal prosecution where the prosecutor has the burden of proof to establish his or her case. Once that burden is deemed met, the burden shifts to the defense to provide either an affirmative defense or persuade the judge/jury that the prosecution has failed to meet his or her burden in one or more ways (called the burden of going forward--just rolls off the tongue ).

In this case the burden of proof never shifts from Contador, but if WADA/UCI fails to meet its burden of going forward, then Contador walks if he meets his burden of proof.

 

[DirtyWorks]

You both correct and wrong at the same time. Think about a criminal prosecution where the prosecutor has the burden of proof to establish his or her case. Once that burden is deemed met, the burden shifts to the defense to provide either an affirmative defense or persuade the judge/jury that the prosecution has failed to meet his or her burden in one or more ways (called the burden of going forward--just rolls off the tongue ).

In this case the burden of proof never shifts from Contador, but if WADA/UCI fails to meet its burden of going forward, then Contador walks if he meets his burden of proof.

Probably obvious question for someone keeping up on this thread, so please be patient with me. Are the rules of the CAS court similar to the adversarial style you are using in your analogy even though this is an appeal?

 

[Polish]

for wada, since one of the possibilities involves a blood transfusion, to 'prove' it was the case over the contamination to the comfortable satisfaction of the panel.

Was WADA given the chance to make its case completely?
Or did CAS compromise WADA's case by denying some testimony.

And it also appears the CAS decision had to go back for a re-write.
(It must have been all written up before they decided to push out the date again)

Any ideas as to what CAS had to revise/rewrite?
Just asking for opinions, as it is not possible to know.

 

[Publicus]

Probably obvious question for someone keeping up on this thread, so please be patient with me. Are the rules of the CAS court similar to the adversarial style you are using in your analogy even though this is an appeal?

As I understand it, CAS is not sitting as an appellate court in the traditional sense.