Why (and How) Bert Should Appeal

[Caruut]

1) Do you know anything about human rights?
2) If Alberto had just taken the ban that would be very suspicious.
3) There apparently are a number of rules and precedents which could have gotten him off.

He now has gotten a 2 year ban. Of course it's easy to say that he just should have put his hands up from the start, but hello, it's his reputation and two years of his career he would be just throwing away. After two years of not racing, he could've never returned succesfully. It's even doubtful if he will succeed now.

Let me tell you a few things about human rights. I have heard of children forced to fight wars - that is a violation of human rights. I have seen protesters beaten by police - that is a violation of human rights. I have heard the stories of what happens at Guantanamo Bay - waterboarding, sleep deprivation, beatings, imprisonment without trial - those are violations of human rights.

Being banned from cycling for 2 years when you test positive for a substance which carries a penalty of a 2 year ban with strict liability is not a violation of human rights. It is simply one of the risks of cycling professionally that if, by bad luck, negligence or wilful doping, clenbuterol ends up in your system, you are in a pretty tight situation. Contador chose to ride professionally, and in doing so accepted that he might end up banned. You can argue that the rule is unfair, but it's still the rule.

So far as I'm concerned, those are the facts. If you can explain why that is wrong clearly and concisely, be my guest.

 

[LaFlorecita]

Let me tell you a few things about human rights. I have heard of children forced to fight wars - that is a violation of human rights. I have seen protesters beaten by police - that is a violation of human rights. I have heard the stories of what happens at Guantanamo Bay - waterboarding, sleep deprivation, beatings, imprisonment without trial - those are violations of human rights.

Being banned from cycling for 2 years when you test positive for a substance which carries a penalty of a 2 year ban with strict liability is not a violation of human rights. It is simply one of the risks of cycling professionally that if, by bad luck, negligence or wilful doping, clenbuterol ends up in your system, you are in a pretty tight situation. Contador chose to ride professionally, and in doing so accepted that he might end up banned. You can argue that the rule is unfair, but it's still the rule.

So far as I'm concerned, those are the facts. If you can explain why that is wrong clearly and concisely, be my guest.

Believe me, you don't have to explain me anything about human rights. I'll try to explain it when it's not late and I'm not tired of fending off attacks from various posters.

It all has to do with the fact that he still got banned even though CAS ruled it was most likely accidental.

 

[cycladianpirate]

Never had any grounds to appeal. Nice bloke and all that, but there it is. An appeal was never on the cards.

 

[Caruut]

Believe me, you don't have to explain me anything about human rights. I'll try to explain it when it's not late and I'm not tired of fending off attacks from various posters.

It all has to do with the fact that he still got banned even though CAS ruled it was most likely accidental.

The very fact that you think this is a human rights issue for Alberto means, in my mind, that you don't quite understand human rights.

If I had a job as head of security at a property, and I had a clause in my contract which said "Unless you can prove that a break-in is not your fault, you lose your job", then I would lose my job after a break-in, unless I could prove otherwise.

That is strict liability. That is what he signed up for, nobody changed clen to a strict liability substance after Alberto tested positive. He got his day in court, and tried to argue some crackpot story about a dodgy steak. He wasn't duped into cycling or forced to cycle, he chose to participate in a sport in which clenbuterol was banned, and in which the burden of proof lay on the accused.

Like I said earlier, the "AC probably not doping" line feels to me like making sure the ruling is absolutely watertight. They say what they need to say, what they can back up saying, and nothing more. If they hadn't said that, then his lawyers might got on the case saying either "the ruling amounts to an unproven accusation of doping, and is hence invalid". When lawyers are around, you watch your tongue.

 

[ContaMuse]

Apparantely Alberto has time until april the second if he wants to appeal but sources from the saxobank team mentions that he probably will not do it because it will take to much time.

 

[LaFlorecita]

Apparantely Alberto has time until april the second if he wants to appeal but sources from the saxobank team mentions that he probably will not do it because it will take to much time.

Seems logical. He'll be back racing in August, an appeal would cost him loads of money. Though I hope he does appeal.

 

[Caruut]

Seems logical. He'll be back racing in August, an appeal would cost him loads of money. Though I hope he does appeal.

If he's appealing, you ahve to say he's doing it to be able to race the Tour. Would be awfully costly to get it all wrapped up so quickly, I'd think, and he can't even be sure that he'd win.

He still gets to race the Vuelta, which is probably one of the reasons he's not too fussed on the appeal.

 

[GJB123]

If he's appealing, you ahve to say he's doing it to be able to race the Tour. Would be awfully costly to get it all wrapped up so quickly, I'd think, and he can't even be sure that he'd win.

He still gets to race the Vuelta, which is probably one of the reasons he's not too fussed on the appeal.

No he wouldn't. Any appeal wouldn't suspend his suspension (if that is actually English). As I explained before that, apart from the money and the possible negative publicity if an appeal goes all pear shaped, it is really a no-brainer. His suspension won't get any longer so he will be able to compete in the Vuelta no matter what, he most likely can't be fined any more (or made to return the prize money) if he wins the appeal and he will restore his palmares.

Also your interpretation of what a human rights law suit might or might not entail is not correct. Naturally human rights are generally associated with human rights violations as you mentioned, but the basis is much broader and I for one wouldn't say with any degree of certainty that the reversal of the burden of proof isn't in itself a violation of his human rights (it is in normal poenal law). The interesting bit however is who AC will need to sue, since one can only sue countries for violations of human rights. In this particular case it far from clear cut whether he could sue Switzerland for this in any way and probably he can't.

As I also stated before, I think and hope he will let it go. The CAS-ruling gives him enough wiggling room to claim he hasn't doped and I personally would like it to be over.

Regards
GJ

 

[Caruut]

No he wouldn't. Any appeal wouldn't suspend his suspension (if that is actually English). As I explained before that, apart from the money and the possible negative publicity if an appeal goes all pear shaped, it is really a no-brainer. His suspension won't get any longer so he will be able to compete in the Vuelta no matter what, he most likely can't be fined any more (or made to return the prize money) if he wins the appeal and he will restore his palmares.

Also your interpretation of what a human rights law suit might or might not entail is not correct. Naturally human rights are generally associated with human rights violations as you mentioned, but the basis is much broader and I for one wouldn't say with any degree of certainty that the reversal of the burden of proof isn't in itself a violation of his human rights (it is in normal poenal law). The interesting bit however is who AC will need to sue, since one can only sue countries for violations of human rights. In this particular case it far from clear cut whether he could sue Switzerland for this in any way and probably he can't.

As I also stated before, I think and hope he will let it go. The CAS-ruling gives him enough wiggling room to claim he hasn't doped and I personally would like it to be over.

Regards
GJ

You're right, I'd forgotten the fact that he was stripped of all his results. I guess I still consider him the winner, so forget that he actually isn't.

In terms of Human Rights violations, I really don't think the reversal of burden of proof is one. For example, English libel law reverses the burden of proof - when you sue someone, it is up to them to prove that they had sufficient grounds to say what they did.

If I were the Swiss courts, I would argue that having clenbuterol in your system is the offence. There was proof of that, so he was convicted. If you can prove that it entered your system in a certain (legal) way, then it is no longer an offence, so you are no longer guilty.

 

[GJB123]

Again you miss my point I am afraid. Libel is a civil suit in whch the burdne of proof can be divided as law makers or judges see fit. A doping case is from it's character much more akin to criminal proceedings in that someone is accused of a wrongdoing and can subsequently be punished. In those kinds of cases the reversal of the burden of proof or the absence of the no guilt-assumption would definitely constitute a violation of human rights. Just for that reason I still feel that a change in the regulations is warranted, but that's just me.

I know that in reality doping proceedings are disciplinary hearings and are therefore somewhat hybrid between civil cases and criminal proceedings. They are more or less privatized criminal proceedings (taking into that the right to issue criminal proceedings reast squarely with the state).

Fact of the matter is that someone gets punished after having to establish his own innocence. Question that remains, is whether there are enough legal possibilities to appeal that to the European Court for Human Rights.

Regards
GJ