The official contador's verdict details discussion thread

[Escarabajo]

Totally agree with this, MI.



To get a lower sentence, Bert should have made contaminated supplements part of his defense instead of food contamination. If he had done that, and could have shown he took appropriate measures and was, in spite of ingesting contaminated supplements, careful enough, he would have had just one year (like Hardy).

By choosing the food contamination theory, and CAS not finding it likely enough, he automatically lost and (de facto) strict liability was applied.

It's very remarkeble that CAS finally chose the food supplements to be the most likely (or least unlikely) explanation. I can't leave the thought that it (more than anything) was an easy way out. The contaminated food supplement option, unlike the other two theories, wasn't contested as much (you could say it was only secundary, and not really corresponding with facts/data either but more or less left alone) somehow flew under the radar and was used very cleverly by CAS, pretty unexpected, as 'out of the blue'-conclusion.

By doing so, CAS didn't have to make a (more) tough decision, didn't have to choose between meat or transfusion. The door was (left) open to supplements, and therefore strict liability...

+1.

Basically CAS covered all their bases.

 

[python]

i’m done ‘digesting’ the ruling…lots of interesting stuff (happy)

for now, i will skip commenting on the meat contamination and proceed to blood transfusion, except briefly mentioning some curious details that jumped at me - (copying my notes)…

- both wada and the uci agree that meat was purchased and consumed as stated buy bert on 20th and 21st
- items 271 and 272 seem to suggest that unlike wada, the uci was prepared to accept the higher possibility of meat contamination (i could be wrong here)
- the most interesting part of meat contamination is in Items 325 and 326 - concluding wada’s departure from it’s earlier position of impossibility of contamination from meat when the sample was measured at only 50 pg/ml

blood transfusion review starts with item 334. interesting to note that all scientific discussions took part not in front of the panel (that’s what infuriated wada) but at ‘expert conferences’

the gist of blood passport arguments basically boiled down to wada defeating it’s own argument by stating in its appeal brief para 129 that no signs of transfusion or manipulation are evident (i'll get to the details later if there's interest)

on phthalates: the cas report closely corroborates previously leaked data by the german journo. dehp metabolites were high - 5OH-MEHP=478.5ng/ml and 5OXO-MEHP=208ng/ml. however. interesting that geyer from the cologne lab sided with ashenden re the dehp indications being a sign of a transfusion.

In item 381 geyer apparently reveals something we did not know and many questioned - other athletes were also tested for dehp during the 2010 tour and none produced the dehp values as high as bert.

in item 389 it is funny how contador took advantage of wada’s own shortcut to declare his polygraph test an admissible evidence and …cas bought it, it was ruled admissible.

items 416 and 417 (and after) go to the very depth of scientific arguments and allow to evaluate if the above cited typos/mistakes in the report are indeed typo/mistakes.

item 416 contains the essence of the wada argument regarding the 2-step transfusion from the pharmacokinetics point of view. it also does point to a potential typo regarding the date of the blood test (an inconsistency with item 16). basically wada (rabin) believe that plasma was injected some time between 7pm on 20 july and 9 am 21 july. a credible assumption considering the known masking/avoidance tactics against testing positive.

item 417 also point to the morning of 21 july as the time for blood test. so, I’m inclined to concur that the date in the item 16 was a typo and most likely the blood test took place in the morning of 21 july. The 1 ug/ml is possibly also a typo - as m. index reflects - though without actually seeing dr rabin’s report i‘d reserve my FINAL judgment for now. though the value of 1ug/ml is consistent with wada’s assumption that only several hours separated plasma transfusion from the blood test with clen in it, item 427 suggests the nanogram-high picogram rages would be more appropriate for a maximum blood concentration.

so both cited typos are likely indeed typos…later.

 

[Publicus]

Totally agree with this, MI.



To get a lower sentence, Bert should have made contaminated supplements part of his defense instead of food contamination. If he had done that, and could have shown he took appropriate measures and was, in spite of ingesting contaminated supplements, careful enough, he would have had just one year (like Hardy).

By choosing the food contamination theory, and CAS not finding it likely enough, he automatically lost and (de facto) strict liability was applied.

It's very remarkeble that CAS finally chose the food supplements to be the most likely (or least unlikely) explanation. I can't leave the thought that it (more than anything) was an easy way out. The contaminated food supplement option, unlike the other two theories, wasn't contested as much (you could say it was only secundary, and not really corresponding with facts/data either but more or less left alone) somehow flew under the radar and was used very cleverly by CAS, pretty unexpected, as 'out of the blue'-conclusion.

By doing so, CAS didn't have to make a (more) tough decision, didn't have to choose between meat or transfusion. The door was (left) open to supplements, and therefore strict liability...

I actually thin AC handled the contaminated supplement angle correctly and that CAS dropped the ball here. Here's my take from another thread:

See paragraph 467 (states that he did not take a supplement on the relevant dates--usually take before or during races, not on race days).

In paragraphs 468-69 they note he provided a list of the supplements provided to the TdF team, which was corroborated by all of the other 8 riders.

In paragraph 470 he affirmed that he only took supplements checked by the team doctor and provided by and through the team--specifically noting he does that to ensure he isn't taking a supplement that is contaminated.

In paragraphs 471 and 472 he notes that all of the riders went under at least two controls and only one tested positive which is odd if they all used supplements from same contaminated supply there should have been more positives.

In paragraph 474, he notes that appellants have provided zero evidence to support their contention that the supplements were contaminated. Only pointing to the Hardy case and not establishing any link between the manufacturer in the Hardy case and the manufacturers of the Astana supplements.

In paragraph 475, he notes that he approached all of the manufacturers of the supplements (6 total) and each affirmed that: (1) none of the use or store CB or any other item on the Prohibited List, (2) none of them have ever been blamed for an athlete testing positive and (3) all carry out external, independent testing of their products, none of which have ever found CB.

In paragraph 476, the Panel notes that the appellants didn't contest ANY of those points. Instead, they allege (in paragraph 478) that he was concealing a supplement he took because he would not escape full sanction.

In paragraph 480, AC refutes this notion by noting that he would have to know which of the supplements contained CB and deliberately not provide that supplement even though a provide a list of all 27 supplements provide by the team to RFEC (and CAS).

At no point does WADA/UCI actually refute anything he presented. CAS concludes that:

(1) random testing and quality assurances of supplements may reduce the risk but it doesn't eliminate the risk of contamination; oddly enough it adds this as a support "In the same manner as the random controls performed on livestock farming in Spain and Europe cannot guarantee that contaminated meat will not reach the consumers, the above-described precautions cannot exclude that a contaminated batch of supplements reaches an athlete." [P. 482]

(2) that despite AC's testimony and his teammates that he only used the supplements provided by the team, the possibility that he used others cannot be ruled out [p. 483] [note there is no evidence to support this conclusion other than the fact that WADA raised it as possible without any support for the contention]

So Contador's team presented evidence/testimony that (A) he didn't take supplements on those days, (B) list of all supplements provide by team, (C) testified that he only took supplements provided by the team to avoid ingesting contaminated supplements, and (D) that manufacturers were taking reasonable precautions to ensure that there were no prohibited substances in any of the substances. As such I don't think it is accurate to say that he didn't present any evidence to establish that the contaminated supplement was not likely. All that is presented on the other side is conjecture (not even circumstantial evidence): (1) Hardy's supplement had CB, so it is possible that supplements may be contaminated and (2) despite testimony to the contrary, it is possible that AC took some unknown supplement that was contaminated. How CAS reaches this conclusion based on the evidence presented is beyond me (there is NO evidence that WADA impeached AC or any of the other teammates direct testimony on what supplements they used during the TdF). I think it is particularly galling that they impose the 2 year sanction without reduction because (1) "the exact contaminated supplement is unknown" and (2) the "circumstances of its ingestion are equally unknown". Simply unbelievable.

Excuse the typos

 

[mastersracer]

a more cynical view is that Contador's defense knew the source of the CB (transfusion) and chose to stick with the meat scenario because they thought is was harder to disprove than the supplement scenario - as the ruling states a few times, the evidence (meat sample) is literally lost. It would be in principle easier to locate similar production batches of supplements and test them. The Harding case and others have done exactly that. The probabilities of the transfusion scenario seem to depend on expert testimony from Contador's defense Martin-Jimenez, there is a noted objection over the inability of the panel to discuss details with Ashenden on these topics, the transfusion scenario is ruled out as impossible at one point because of the low DEHP levels in the sample (which depends on excluding a DEHP bag), all despite the fact that there is testimony that Contador transfused, which gets dropped. Other experts say there are multiple scenarios that make the transfusion scenario plausible, but they appear not able to present these scenarios.

 

[Escarabajo]

Some interesting points I came across in the report. In the UCI’s testimony:

...

4. UCI categorically states that contamination is no more likely than, and most likely less likely than, transfusion. Also, that even if contamination were the most likely source, Bert still has failed to prove it.

...

Thanks for the summary MI.

To the bolded. I think this was the key of the appeal.

 

[I Watch Cycling In July]

So Contador's team presented evidence/testimony that (A) he didn't take supplements on those days, (B) list of all supplements provide by team, (C) testified that he only took supplements provided by the team to avoid ingesting contaminated supplements, and (D) that manufacturers were taking reasonable precautions to ensure that there were no prohibited substances in any of the substances. As such I don't think it is accurate to say that he didn't present any evidence to establish that the contaminated supplement was not likely. All that is presented on the other side is conjecture (not even circumstantial evidence): (1) Hardy's supplement had CB, so it is possible that supplements may be contaminated and (2) despite testimony to the contrary, it is possible that AC took some unknown supplement that was contaminated. How CAS reaches this conclusion based on the evidence presented is beyond me (there is NO evidence that WADA impeached AC or any of the other teammates direct testimony on what supplements they used during the TdF). I think it is particularly galling that they impose the 2 year sanction without reduction because (1) "the exact contaminated supplement is unknown" and (2) the "circumstances of its ingestion are equally unknown". Simply unbelievable.

To a large extent I agree with you here. CAS has found the contaminated supplement argument as the most likely source of clen. CAS' own fascinating interpretation of the meaning of "balance of probability" in this case indicates the most likely scenarios should be viwed as >50% probable. Therefore IMO the panels own findings go a long way to satisfying the requirement for a shorter sentence due to no fault or negligence, in that the way the prohibited substance entered the athletes body has been demonstrated to the required standard.

This leaves Bert still to show he was not negligent in ingesting clen through a contaminated supplement. However, proving the non-negligence in isolation is proving a negative. Following the rules used elswhere in the case, this requirement to prove a negative would shift some of the burden to WADW/UCI, who would need to cooperate by offering alternate scenarios. They don't appear to have offerered any evidence to support the contaminated supplement theory, appart from guilt by association. So I don't see how they have fulfilled their obligation to cooperate. Meanwhile Bert has offered some evidence of efforts to avoid unintentional ingestion, so I think the balance of evidence supports his contention that he was not negligent.

In summary, I think once CAS found contaminated supplement was the most likely scenario, a two year sanction becomes difficult to defend. To some extent, because of the DEHP, I don't believe the outcome is unfair to Bert. But in effect CAS has ruled there is enough evidence of a contaminated supplement for the athlete to be banned, although not enough evidence of contamination for the ban to be reduced as is normal in cases of contaminated supplements. I doubt we have heard the last of this.

As an aside, I think richard moores summary of the decision was ill informed and unbalanced. Meh.

 

[Merckx index]

the gist of blood passport arguments basically boiled down to wada defeating it’s own argument by stating in its appeal brief para 129 that no signs of transfusion or manipulation are evident (i'll get to the details later if there's interest)

As noted earlier, Ashenden claimed that Bert's retics and Hb levels were fishy. WADA does concede that this does not constitute proof of transfusion (not surprising, as Ashenden has been a leading critic of the passport, arguing it can't detect transfusion), but they also emphasize that the parameters were entirely consistent with the possibility. Unless one felt all along that they had to provide strong evidence of transfusion--this gets into the question of which side has the burden to do what--I don't see that this undercut their case. Of course, Bert would say that it does.

on phthalates: the cas report closely corroborates previously leaked data by the german journo. dehp metabolites were high - 5OH-MEHP=478.5ng/ml and 5OXO-MEHP=208ng/ml. however. interesting that geyer from the cologne lab sided with ashenden re the dehp indications being a sign of a transfusion.

In item 381 geyer apparently reveals something we did not know and many questioned - other athletes were also tested for dehp during the 2010 tour and none produced the dehp values as high as bert.

I think Bert dodged a bullet here. If this test had been validated, they had enough evidence to nail him. If there hadn't been the discrepancy in DEHP and CB positives, I think they would have concluded transfusion, though another argument the panel liked was that Bert would not have taken such large doses of CB before withdrawal. In fact, I'm seriously thinking Bert might have transfused blood, and still gotten the CB from a supplement. That would avoid both of the major arguments against transfusion--that he would not be dumb enough to take large doses of CB, and that he would not store plasma in a DEHP-free bag and transfuse it a day after the cells. Normally I would think two sanctionable offenses happening at once would be too coincidental to be likely, but transfusion and taking a contaminated supplement (and not being aware of it at the time) are separately quite likely, I could easily see both happening.

I think when they latched onto the supplement theory, the panel forgot just how strong the DEHP evidence for transfusion is. I don't have a problem if they can't use it to prove transfusion, but that is a legal argument, not a scientific one. Scientifically, one would like to see all the loose ends of the case tied up neatly, and simply saying supplement doesn't achieve that. There is virtually no way to explain the DEHP positive except by a transfusion. Not having a transfusion and having that level is more likely than getting CB from contaminated meat, but that's about all. Still very unlikely.

item 417 also point to the morning of 21 july as the time for blood test. so, I’m inclined to concur that the date in the item 16 was a typo and most likely the blood test took place in the morning of 21 july.

Yes, this seems to be the case. Also, the fact that if Bert had tested positive for CB on July 20, it might have obviated the need for two transfusions, at least, the report should have made some mention of why it didn't.

The 1 ug/ml is possibly also a typo - as m. index reflects - though without actually seeing dr rabin’s report i‘d reserve my FINAL judgment for now. though the value of 1ug/ml is consistent with wada’s assumption that only several hours separated plasma transfusion from the blood test with clen in it, item 427 suggests the nanogram-high picogram rages would be more appropriate for a maximum blood concentration.

Definitely need clarification here. I don't think it's a typo, at least in the ordinary sense, since it's repeated several times in the report. As I discuss in a previous post, it doesn't matter about the timing of any blood test wrt transfusion, 1 ug/ml is far too high, even if he dosed himself with pure CB, let along the much-diluted amount that could possibly be present in blood, would not get a value anywhere near this. The values in 427 are lifted right out of that CB paper that has been cited often here in the forum, and which I referred to in my earlier post in this thread. I'm surprised they don't see the discrepancy between these values and 1 ug/ml.

 

[jackwolf]

There is no waiver on the ban length. Its 2 years or nothing. CAS had to apply 2 years they had no choice in the scope of the rules. If found guilty of doping then you get 2 years. Regardless of the method of ingestion. There’s no sliding scale for level of guilt. That’s just the emotional side within us who suggest that he’s been unlucky and can he only be banned for 6 months. Unfortunately it doesn’t work like that.

The Swiss court would more than likely overturn the decision as they can apply EU and local law whereas CAS could only apply the UCI rules.

Switzerland is not in the EU.

 

[python]

like everyone who loves cycling and who knows a bit of its history, i had a hunch. yet, characteristic to people in my profession, the mind HAS to be brought in sync with the hunch. so i dedicated considerable amount of time to following this case closely. i collected the smallest bits, both technical and rumours, reflected and waited. then, case-fatigued, i decided to make up my final mind AFTER i had a chance to read (and UNDERSTAND !) the cas ruling. the idea was simple enough - cas, as i always found, will competently and objectively put all the missing pieces together…

and you know what ? after taking several hours to slowly read the ruling’s 98 pages and go over my own 100+ notes twice, I came out MORE confused …

i think the panel should be complemented for delving into a complicated case and doing a lot of work. i was particularly happy to see cas imposing the swiss law that compelled wada to present 2 alternative scenarios they did not have to under wada’s own rules. but honestly, the panel’s findings about the food supplement being the likeliest source of clen i found the poorest supported. i mean it’s possible, but it does not flow from the evidence and the logic presented. in fact, it’s rather obvious - cas threw its full weight behind a theory wada itself does not believe considering how much effort (compared to the supplement theory) they spent proving the blood transfusion. i called this situation weird earlier and see no reason to back off.

conclusions ? Well, it will hardly come as a surprise to those familiar with my consistently expressed views. i don’t blame the panel for the strange verdict nor do i blame contador - i tend to think they both were unfairly framed by the messy and outdated wada rules on strict liability in general and clenbuterol specifically.

That’s exactly what I think, agree or disagree, is the main lesson here.

Ps, @ m.index,
wada appeal brief para 129

 

[python]

..............
item 416 .........also does point to a potential typo regarding the date of the blood test (an inconsistency with item 16)....item 417 also point to the morning of 21 july as the time for blood test.......the date in the item 16 was a typo ...... The 1 ug/ml is possibly also a typo .......... item 427 suggests the nanogram-high picogram rages ............so both cited typos are likely indeed typos…later.

the revised ruling available on cas website has fixed both typos/errors cited above.

Following WADA’s request, the Cologne Laboratory reanalysed three other urine samples provided by Mr Contador during the 2010 Tour de France. The bodily samples of 22, 24 and 25 July 2010 showed further clenbuterol concentrations of 16 pg/mL, 7 pg/mL and 17 pg/mL respectively. A blood sample was also taken on Mr Contador on the morning of 21 July 2010. Such blood sample also contained clenbuterol at a concentration of around 1 pg/mL.