Why (and How) Bert Should Appeal

Page 3 - Get up to date with the latest news, scores & standings from the Cycling News Community.
Jan 3, 2011
4,594
0
0
I find it odd that his defense didnt argue this very scenario in the first place
 
Jan 3, 2011
4,594
0
0
mastersracer said:
Also, since Contador's defense did not raise the supplement scenario I wonder if they have no recourse to appeal on that basis as there's no procedural error.

Agree, however he might be able to since CAS rules this scenario the most likely one.
 
Jan 24, 2012
1,169
0
0
Le breton said:
Of course I am

No kidding? You didn't think I realized that?

Even Bartolomeo Vanzetti didn't like being called Bart, Joan Baez' song notwithstanding and the fact that she gives me shivers whenever I hear her sing it.
http://www.youtube.com/watch?v=gcgYwTnBIIQ

Calling people by their name is the first mark of respect you owe them.

And someone getting upset over such a trivial thing is repulsive. I doubt ALBERTO CONTADOR cares what people call him. In person, I would assume he would like to be refered to by some combination of his name that makes it obvious he is the one being referenced.

Alberto has a nice ring to it, I do not really see Bert, Bertie, or Berto as sounding all that great. But again, you read a forum, you do not hear one.

Sadly I can dispute the last thing I said.
 
Jul 27, 2010
5,121
884
19,680
I thought I was prepared for any kind of criticism for my post, but taking me to task for calling him Bert has definitely caught me off balance! Needless to say, that is one of the nicer names he is called in the Clinic. Personally, I find it kind of cute, but if, ahem, Sr. Contador ever publicly indicates he hates that name, I might consider an alternative. But if Flor, surely the most passionate fan of his in this forum, is OK with it, I think it can’t be that bad.

Thanks for the feedback. Some replies:

. Contaminated suplements is simply a hypothesis put forward for how the CB could have reached his bloodsteam and the relative likelihood of this being the case compared to contaminated meat or blood doping. There are other ways it potentially could have got in there, all with their own specific probabilities. Probability, however, has nothing to do with the ruling. All that matters is that an athelete tested positive for a banned substance. Due to WADA's insistence on strict liability, a positive test is a doping offence unless the athelete can prove that they did not knowingly take the banned substance. The fact that we are still talking about the probability of different scenarios only confirms that in this case the athelete has been unable to prove that the substance was not consciously taken. CAS's ruling simply means that the court (rightly) concluded that the previous judgment by the national federation was in error because proof was not, and is still yet to be, provided

Sorry to spike your point so quickly - but Contador was sanctioned because the theory he presented of meat contamination was rejected.

Yes and no. He was sanctioned, ultimately, because he could not prove meat contamination. But even more fundamentally, because he could not prove, by balance of probabilities, that CB entered his system by a method that would not result in a sanction. The panel established that there are three possible causes of the positive in play, and now two of them have been shown, or so I argue, to be not sanctionable. If the sanction is to be upheld, it must be on the basis of transfusion, but by the panel’s own logic this is less than 1/3 likely to be the case (because it was considered equally unlikely as meat contamination, and less likely than supplement contamination). So the panel has in effect ruled that by balance of probabilities, CB did enter Bert’s system by a means that is not sanctionable.

If you want to get technical, you could argue that only meat contamination matters, because that was how the case was presented to CAS. So even if supplement contamination has been shown to occur by no fault, CAS could still justify its sanction by a strict interpretation of the rules. But given how recently sensitivity for CB detection has increased, I think the argument I have made is a reasonable one. While the letter of the law might say "must show meat contamination by balance of probabilities", the spirit of the law says "must show entered his body through no fault of his by balance of probabilities."

I have read that Contador's own team provided evidence that supplements were not the source, so I do not think this is likely to occur. The supplements he used were provided for by the team, were the same supplements used over a three year period by his teammates and himself, none of whom have ever tested positive for CB, and is produced by a company that has nothing to do with CB.

Yes, but this is on the basis of the relatively insensitive testing standards. Consider four pieces of evidence put forth by Bert’s team:
1) No other Astana rider, using the same supplements, tested positive
2) None of the supplements used have been associated with a positive by any other athlete
3) The manufacturers have independently tested their products and found them to be negative
4) CB contamination of supplements is extremely rare. Hardy may be the only case, and AdvoCare disputed her claims. Also, none of the supplements tested in the link I provided was positive for CB.

BUT a) and b) can be accounted for by the fact that very few athletes have been tested at Cologne-level sensitivity, and c) and d) by the fact that the industry standard of 100 ng/g would not reveal levels of CB sufficient to account for Bert’s positive. This is what I mean when I say the levels are indetectable. By pre-Cologne standards for athletes and by industry standards for substances the supplements are clean. It would be natural for Bert's team to argue against supplement contamination, because on the basis of accepted standards,their argument is correct.

]\
surely the onus is on the athlete to avoid supplements from companies who cannot guarantee that their supplements are kosher.

The point of my argument is that NO company can guarantee their products are kosher by the Cologne or other highly sensitive standard. So WADA/UCI should either ban all supplement use--no, not "discourage", but outright ban, in the same sense, e.g., that transfusions, even of just saline, are banned--or not sanction levels below the detection limit. Not doing one or the other is hypocritical, not to mention unfair.

Could someone explain to me how supplements get contaminated? Is that done intentionally by the producer of the supplement or does it just happen?

Sometimes intentionally by the company to increase the benefits. Sometimes accidentally because the contaminant is involved in some other process in the same area where the substance is being synthesized. Both of these possibilities seem to be ruled out by the known companies that Bert listed. If he took an unlisted supplement, of course, all bets are off. But even if he took one on the list, another possibility I have been concerned about is water contamination. I posted a link a while back to a study showing that several rivers in Europe have detectable levels of CB and some other drugs. This is another reason why cattle doping is banned or controlled, because the drugs can run off the feedlots and contaminate the water supply. They would probably be removed from drinking water, but not necessarily from water used for industrial purposes.

There are many instances of athletes taking supplements that proved to be contaminated with PEDs. Said athletes generally receive/d "time outs". My understanding is that supplements are prone to contamination and CAS is of the view that inadvertant doping via supplements certainly does not constitute "without fault".

Again, this misunderstands my argument. The athlete is at fault in conventional supplement contamination cases because he was not diligent about the possibility of DETECTABLE levels of contaminants. I am arguing there can be no fault if the level is NOT DETECTABLE. Again, this is analogous to meat contamination. If Bert’s positive had been shown capable of being caused by meat that passed the Euro standard, he would have got off. Why? Because that level of contamination is not detectable. You can’t hold an athlete at fault for something no one can detect.

I will add, to be clear, that it's certainly possible to test supplements at much lower levels of detection. For example, I saw one study where pg/g levels were reported. This would be another alternative to protecting athletes. But currently the standard is much higher, and this case has to be judged on that basis. (Again,think of the meat analogy. Levels of CB in meat below the Euro standard could be detected, but currently are not).

Quick question: since the 50 pg/ml was urine, not blood, how much CB total was in his body? ( I assume w/ blood you multiply by 5 liters or so and that's your lower bound).

As mentioned in the OP, a rough estimate based on urine tests would be 500 ng. I think 1 ug would be a reasonable upper bound that both parties could accept. The industry standard of 100 ng/g is based on an athlete consuming as much as 50 g of supplement per day, or 5 ug of contaminant. So clearly by all but the most extreme pharmacokinetic estimates, Bert had considerably less CB in his body than the standard for clean supplements.
 
Jun 7, 2010
19,196
3,092
28,180
So it is non-negligent to take a lot (as apparently Contador did) of supplements despite the detection limit being high enough so that taking quite a bit less than an "average" dose of supplements per day might cause a positive test?
 
Jul 25, 2009
1,072
0
0
roundabout said:
So it is non-negligent to take a lot (as apparently Contador did) of supplements despite the detection limit being high enough so that taking quite a bit less than an "average" dose of supplements per day might cause a positive test?

The notes to no fault/negligence (10.5.1) and no significant fault/negligence (10.5.2) address your question to some extent and can be found on pages 56 - 57 of theWADA code.

"To illustrate the operation of Article 10.5.1, an example where No Fault or Negligence would result in the total elimination of a sanction is where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor. Conversely, a sanction could not be completely eliminated on the basis of No Fault or Negligence in the following circumstances: (a) a positive test resulting from a mislabeled or contaminated vitamin or nutritional supplement (Athletes are responsible for what they ingest (Article 2.1.1) and have been warned against the possibility of supplement contamination); (b) the administration of a Prohibited Substance by the Athlete’s personal physician or trainer without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance); and (c) sabotage of the Athlete’s food or drink by a spouse, coach or other Person within the Athlete’s circle of associates (Athletes are responsible for what they ingest and for the conduct of those Persons to whom they entrust access to their food and drink). However, depending on the unique facts of a particular case, any of the referenced illustrations could result in a reduced sanction based on No Significant Fault or Negligence. (For example, reduction may well be appropriate in illustration (a) if the Athlete clearly establishes that the cause of the positive test was contamination in a common multiple vitamin purchased from a source with no connection to Prohibited Substances and the
Athlete exercised care in not taking other nutritional supplements.
)"


In practical terms I think WADA would be pushing **** uphill with a sharp stone to try to argue that an athlete was SIGNIFICANTLY at fault/negligent for taking multiple carefully sourced supplements which were uncontaminated by current detection standards. They have certainly tried not to give athletes much wiggle room though.
 

Dr. Maserati

BANNED
Jun 19, 2009
13,250
1
0
Merckx index said:
<snipped for brevity>

Yes and no. He was sanctioned, ultimately, because he could not prove meat contamination. But even more fundamentally, because he could not prove, by balance of probabilities, that CB entered his system by a method that would not result in a sanction. The panel established that there are three possible causes of the positive in play, and now two of them have been shown, or so I argue, to be not sanctionable. If the sanction is to be upheld, it must be on the basis of transfusion, but by the panel’s own logic this is less than 1/3 likely to be the case (because it was considered equally unlikely as meat contamination, and less likely than supplement contamination). So the panel has in effect ruled that by balance of probabilities, CB did enter Bert’s system by a means that is not sanctionable.
The panel did not establish the 3 scenarios - they were presented to them.

Thats an important distinction because there may be other reasons that were not argued or raised, which is the very reason for strict liability in the first place.

Again - of the theory's presented supplement contamination was viewed as 'possible', nothing more.


Merckx index said:
If you want to get technical, you could argue that only meat contamination matters, because that was how the case was presented to CAS. So even if supplement contamination has been shown to occur by no fault, CAS could still justify its sanction by a strict interpretation of the rules. But given how recently sensitivity for CB detection has increased, I think the argument I have made is a reasonable one. While the letter of the law might say "must show meat contamination by balance of probabilities", the spirit of the law says "must show entered his body through no fault of his by balance of probabilities."
Even if that was applied and Bert (hehe) had concentrated on identifying supplement contamination, he would still have to show that it was indeed the supplements.
If he can show that after he was caught then he should have been able to apply that test before he was caught - again, he would be at fault.
 
Jul 27, 2010
5,121
884
19,680
Dr. Maserati said:
The panel did not establish the 3 scenarios - they were presented to them.

Thats an important distinction because there may be other reasons that were not argued or raised, which is the very reason for strict liability in the first place.

Again - of the theory's presented supplement contamination was viewed as 'possible', nothing more.

Yes, the scenarios were presented to the panel, but by considering each in turn, the panel established them as possibilities, to be judged in the context of the likelihood of meat contamination. I think someone would have a lot of difficulty arguing for other possibilities. The fact that supplement contamination was viewed only as “possible” does not excuse CAS from the laws of probability. If you can come up with only three possible causes of some event, and only one of these causes, with a probability of less than one-third, leads to a sanction, then on balance of probabilities there can be no sanction. It was emphasized again and again at the hearing that this was about a balance of probabilities.

Even if that was applied and Bert (hehe) had concentrated on identifying supplement contamination, he would still have to show that it was indeed the supplements.
If he can show that after he was caught then he should have been able to apply that test before he was caught - again, he would be at fault.

Again, people are not paying attention to the argument. He had no reason prior to the test, or even prior to the hearing, to believe it was a supplement. If the supplements he took are clean by industry standards, then it couldn’t be supplements. Also, as I noted earlier, and as Bert’s team pointed out, stimulant contamination of supplements is extremely rare. The study of 50+ supplements I linked earlier found no stimulant contamination. Likewise, another study of more than one hundred products found no stimulant contamination. Both of these studies found a sizeable fraction of products contaminated with steroids. This is a pretty strong motive for Bert’s initial rejection of a contaminated stimulant.

You could argue that Bert and his lawyers should have realized at some point that the supplement could be clean by testing standards and still result in a positive. But since CAS has missed this completely, as well as apparently WADA and UCI, I don’t see how Bert and his team can be blamed for also missing it. There is an old saw, ignorance of the law is not an excuse. But when the lawmakers and lawjudgers are also ignorant, it’s difficult not to excuse ignorance.

You might also argue that Bert claimed he never took any supplements on the rest day; if he was telling the truth, that seems to refute my argument completely. But if he took a supplement the day before, after or very shortly before being tested on that day, he could have tested negative while still testing positive the next day. I think the timing of the tests needs to be examined closely to evaluate this possibility.

Finally, a further interesting passage from a review article on supplement contamination published in 2006:

Two International Organization for Standardization validated methods, ISO 17025, have been published for the screening of twenty-eight different anabolising agents including testosterone and prohormones, nandrolone and prohormones, esters of both compounds, stanozolol and metandienone (Van Thuyne & Delbeke, 2004, 2005). Although until now only one ester of testosterone (testosterone undecanoate) is available for oral administration, these methods are capable of detecting other esters of testosterone and nandrolone when they should become available on the supplement market. A distinction was made between solid (Van Thuyne & Delbeke, 2004) and aqueous (Van Thuyne & Delbeke, 2005) nutritional supplements. LOD ranged from 2 to 40 ng/g for solid supplements while for aqueous supplements LOD were between 1 and 10 ng/ml. These LOD meet the requirements of official authorities such as the Dutch system (NZVT).

Again, the standard for steroids is generally 10 times lower than that for stimulants.

Even if turns out that an appeal is impossible for technical reasons, even if Bert really doped (and again, I find the evidence for transfusion, with or without CB, very strong), this situation can't stand. The CAS ruling means that an athlete can be sanctioned for a positive that results from taking a drug that has tested clean. Even if supplement contamination is only a possibility, if it were shown conclusively that that was the source of the CB, there would still be a sanction--maybe not two years, but definitely a sanction. There are pro athletes right now who are taking supplements approved by their governing organizations, and who could probably test positive at these new more sensitive levels. CAS at the very rock-bottom minimum is derelict in not pointing out this problem. They never mention it at all, they seem quite unaware of it. It has to be addressed.

Btw, Mas, don’t know if you ever settled your argument with another poster about whether CAS stated that the CB found in Bert’s system would not be PE, but this is stated in article 507a (article 417 tends to contradict it, but IMO the latter should not be taken seriously).

Edit: interesting article in the NYT about how the sudden death of two American soldiers might be linked to contaminated supplements:
http://www.nytimes.com/2012/02/03/business/army-studies-workout-supplements-after-2-deaths.html
 

mastersracer

BANNED
Jun 8, 2010
1,298
0
0
Merckx index said:
. The fact that supplement contamination was viewed only as “possible” does not excuse CAS from the laws of probability. If you can come up with only three possible causes of some event, and only one of these causes, with a probability of less than one-third, leads to a sanction, then on balance of probabilities there can be no sanction. It was emphasized again and again at the hearing that this was about a balance of probabilities.

read article 265 which appears to assume the second burden of proof (the 51% probability) is reached if one of 3 scenarios is the most likely. They seem to rule out the 1/3 probability (for reasons that seem to outright contradict basic probabilistic reasoning). Also, as I mentioned before, the balance of probabilities is a special case due to the inability to test the actual meat sample. That does not mean the same application of the burdens would be the same in a supplement defense.
 
Jul 14, 2009
2,498
0
0
The fact that the UCI has not worked this out speaks volumes about the brand. Had they said no measurable levels of XXX substance no matter what,no reasons.no excuses, no explanations,whatever that would be a good start to this public display of BS. No other pro sport is subjecting itself to the these self destructive rules that the UCI is using to ruln pro cycling .

Pro soccer, baseball and tennis are full of athletes from all over the world,and they all use drugs. The catch and punish process that they are using, better or worse is allowing the sports to go on developing talent,holding major events with massive prize money and endorsements. The people running pro cycling are complete fuc@ing idiots. Yes you Pat.

Substitute Tom Brady for Alberto, nobody with a brain the size of flea poop would subject the championship of the sport, tour/superbowl and dozens of other events full of history, prestige and community goodwill to an athlete under this level of investigation. The UCI is what is holding cycling back not doping. Every form of pro sport has breakers of rules. Cycling is killing itself by allowing the UCI to run things.

Seeing Contador's wins overturned is a cycling only sh&tstorm, nobody would let this happen to their business, not sure why the bike team owners let this happen to them. I see it now FIFA representing the "new" winner after a drug scandal..NFW. In the film Senna there was an overturning of a major result,it was ugly for everybody,cycling is used to not only subjecting it's fans to another shoe drop but have not changed the rules and organization so it doesn't happen again.
 

Dr. Maserati

BANNED
Jun 19, 2009
13,250
1
0
Merckx index said:
Yes, the scenarios were presented to the panel, but by considering each in turn, the panel established them as possibilities, to be judged in the context of the likelihood of meat contamination. I think someone would have a lot of difficulty arguing for other possibilities. The fact that supplement contamination was viewed only as “possible” does not excuse CAS from the laws of probability. If you can come up with only three possible causes of some event, and only one of these causes, with a probability of less than one-third, leads to a sanction, then on balance of probabilities there can be no sanction. It was emphasized again and again at the hearing that this was about a balance of probabilities.
Ok - you keep saying "Yes...but..".

The highlighted is correct, but only because anti-doping authorities are usually behind the latest doping methods. That is why the onus is placed on the athlete to explain a positive.

I don't know where you get this argument of 1/3? This was not applied during the CAS case and has no basis.
When you read the decision they are very careful to state the supplement theory is "possible", not "probable".



Merckx index said:
Again, people are not paying attention to the argument. He had no reason prior to the test, or even prior to the hearing, to believe it was a supplement. If the supplements he took are clean by industry standards, then it couldn’t be supplements. Also, as I noted earlier, and as Bert’s team pointed out, stimulant contamination of supplements is extremely rare. The study of 50+ supplements I linked earlier found no stimulant contamination. Likewise, another study of more than one hundred products found no stimulant contamination. Both of these studies found a sizeable fraction of products contaminated with steroids. This is a pretty strong motive for Bert’s initial rejection of a contaminated stimulant.
Of course he does - he/they are responsible for everything they consume.

There have been plenty of warnings about supplements - if they had not had their suppliers independently tested they were fools.
And even if they had and it passed, yet later it was proved that a supplement had triggered a positive he would still serve a years sanction (like Hardy) as they would not show No Fault or Negligence.



Merckx index said:
You could argue that Bert and his lawyers should have realized at some point that the supplement could be clean by testing standards and still result in a positive. But since CAS has missed this completely, as well as apparently WADA and UCI, I don’t see how Bert and his team can be blamed for also missing it. There is an old saw, ignorance of the law is not an excuse. But when the lawmakers and lawjudgers are also ignorant, it’s difficult not to excuse ignorance.

You might also argue that Bert claimed he never took any supplements on the rest day; if he was telling the truth, that seems to refute my argument completely. But if he took a supplement the day before, after or very shortly before being tested on that day, he could have tested negative while still testing positive the next day. I think the timing of the tests needs to be examined closely to evaluate this possibility.

Finally, a further interesting passage from a review article on supplement contamination published in 2006:



Again, the standard for steroids is generally 10 times lower than that for stimulants.

Btw, Mas, don’t know if you ever settled your argument with another poster about whether CAS stated that the CB found in Bert’s system would not be PE, but this is stated in article 507a (article 417 tends to contradict it, but IMO the latter should not be taken seriously).

Edit: interesting article in the NYT about how the sudden death of two American soldiers might be linked to contaminated supplements:
http://www.nytimes.com/2012/02/03/business/army-studies-workout-supplements-after-2-deaths.html

No - the person did not show where it was stated by CAS.
Also, 507a was argued by Contador, so.......
 
Mar 17, 2009
11,341
1
22,485
Dr. Maserati said:
The panel did not establish the 3 scenarios - they were presented to them.

Thats an important distinction because there may be other reasons that were not argued or raised, which is the very reason for strict liability in the first place.

Again - of the theory's presented supplement contamination was viewed as 'possible', nothing more.



Even if that was applied and Bert (hehe) had concentrated on identifying supplement contamination, he would still have to show that it was indeed the supplements.
If he can show that after he was caught then he should have been able to apply that test before he was caught - again, he would be at fault.

Your logic is faulty here. If he had taken all of the precautions he outlined in his argument, a reasonable person would have concluded that he had acted non-negligently. Suggesting that after he tests positive that he would still be sanctioned for having not utilized testing of the same calibre as Cologne (when most if, not all other WADA labs can't achieve that level) is, in a word, unreasonable. In all likelihood, he would have walked without sanction.

EDIT: Btw, MI, I would be remiss if did not, once again, acknowledge your considerable contributions in this thread. If nothing they are illuminating and thought-provoking. Kudos sir.
 

Dr. Maserati

BANNED
Jun 19, 2009
13,250
1
0
Publicus said:
Your logic is faulty here. If he had taken all of the precautions he outlined in his argument, a reasonable person would have concluded that he had acted non-negligently. Suggesting that after he tests positive that he would still be sanctioned for having not utilized testing of the same calibre as Cologne (when most if, not all other WADA labs can't achieve that level) is, in a word, unreasonable. In all likelihood, he would have walked without sanction.

EDIT: Btw, MI, I would be remiss if did not, once again, acknowledge your considerable contributions in this thread. If nothing they are illuminating and thought-provoking. Kudos sir.

Well no - lets be frank, the faulty logic is that CAS deemed the contaminated supplement theory 'possible' and some have taken that as the definitive reason for ACs positive.

However - to your point, yes, Cologne has sensitive equipment, to pick up traces of clenbuterol that have passed through an athlete and appear in their urine. You hardly need the same sensitive equipment to test supplements.
 
Mar 17, 2009
11,341
1
22,485
Dr. Maserati said:
Well no - lets be frank, the faulty logic is that CAS deemed the contaminated supplement theory 'possible' and some have taken that as the definitive reason for ACs positive.

However - to your point, yes, Cologne has sensitive equipment, to pick up traces of clenbuterol that have passed through an athlete and appear in their urine. You hardly need the same sensitive equipment to test supplements.

Perhaps you were confused. I was only referencing this (bolded below) portion of your analysis:

Dr. Maserati said:
[Snip]

Even if that was applied and Bert (hehe) had concentrated on identifying supplement contamination, he would still have to show that it was indeed the supplements.
If he can show that after he was caught then he should have been able to apply that test before he was caught - again, he would be at fault.

Your above analysis is incorrect for the reasons I previously stated. It's okay, it happens to the best of us. :)

EDIT: Let me expound a bit. Whether or not AC (or any athlete's) efforts are reasonable (i.e., non-negligent) is not outcome determinative--which is essentially what you are analysis implies. Under your formulation NO athlete would ever be reasonable unless their actions successfully caught the contamination on the front end. If, for whatever reason, their actions, however reasonable (i.e., non-negligent), failed to detect the contaminated substance but a subsequent test discovered it, that fact would not alter the analysis of whether the athlete acted reasonably in the original instance.

Hopefully that makes a bit more sense.
 

Dr. Maserati

BANNED
Jun 19, 2009
13,250
1
0
Publicus said:
Perhaps you were confused. I was only referencing this (bolded below) portion of your analysis:

Oh, I am sorry - I had no idea I could not comment on the rest, that must be a new rule.

Publicus said:
Your above analysis is incorrect for the reasons I previously stated. It's okay, it happens to the best of us. :)
Let me try again - if Contador was to pursue the supplement theory, he would first have to show that the contamination did indeed come from a supplement, if he can do that after the fact, then he can do it before.

Now to your point:
Publicus said:
Your logic is faulty here. If he had taken all of the precautions he outlined in his argument, a reasonable person would have concluded that he had acted non-negligently. Suggesting that after he tests positive that he would still be sanctioned for having not utilized testing of the same calibre as Cologne (when most if, not all other WADA labs can't achieve that level) is, in a word, unreasonable. In all likelihood, he would have walked without sanction.

EDIT: Btw, MI, I would be remiss if did not, once again, acknowledge your considerable contributions in this thread. If nothing they are illuminating and thought-provoking. Kudos sir.

Here is some light reading from the Hardy case:
120 The Panel recognizes that Hardy could have taken other conceivable steps. WADA, indeed, indicated in its submissions other actions that Hardy could have taken: for instance, she could have conducted further investigations with a doctor or another reliable specialist; she could have the supplements tested. Those circumstances actually show that Hardy was indeed negligent, also considering that the risks associated with food supplements are well known among athletes, years after the first cases of antidoping rule violations caused by contamination or mislabelled products were detected and considered in the CAS jurisprudence. The Panel however finds that Hardy has shown good faith efforts “to leave no reasonable stone unturned” (Despres Award, § 7.8) before ingesting the AdvoCare products: she made the research and investigation which could be reasonably expected from an informed athlete wishing to avoid risks connected to the use of food supplements.

CAS do not agree with your opinion - as she was banned for a year - its ok, it happens the best of us :)
 
Mar 17, 2009
11,341
1
22,485
Dr. Maserati said:
[1] Oh, I am sorry - I had no idea I could not comment on the rest, that must be a new rule.


[1] Let me try again - if Contador was to pursue the supplement theory, he would first have to show that the contamination did indeed come from a supplement, if he can do that after the fact, then he can do it before.

Now to your point:


[2] Here is some light reading from the Hardy case:


CAS do not agree with your opinion - as she was banned for a year - its ok, it happens the best of us :)

[1] none of that was responsive to my original comment, so it was pointless to include it unless you just like hearing yourself pontificate.

[2] When were we talking about the Hardy case? My comments were based on YOUR analysis as set forth in that sentence and qualified by my very specific comment regarding AC's specified actions. This is absolutely critical because the analysis is FACT SPECIFIC.

I'm not familiar with the underlying facts of the Hardy case beyond the very basics as outline in the AC CAS opinion, so I'm not in a position to argue the distinction between the two cases. That being said, I did a quick google search on her case and, if the following facts are accurate, I can see a clear distinction between the two cases:

Advocare only obtained independent verification of 1 of the 10 supplements she was taking. Apparently the Banned Substance Control Group analyzed that 1 supplement at a WADA certified laboratory to ensure that EACH batch of the drug does not contain any of the items listed on the Prohibited List--including clenbuterol.

Without knowing anymore about the case, and, for the sake of argument, assuming that the 3rd party analysis performed on the supplements AC says he took was identical to the level performed by BSCG (for all 27 supplements), then I'm, yet again, very comfortable with my analysis that your position is incorrect that AC would have likely escaped sanction.

But as I said above, you were neither arguing, nor presented, the facts of the Hardy case. Now perhaps you believe that the analysis is dispositive in all cases (even the generic one you presented), but I hope you can see that while the analytical framework is the same, the facts are the key to the analysis.

EDIT: I'm reading through her CAS opinion and holy-wow. I can't believe they found her to be not-siginificantly negligent when 9 of the 10 supplements weren't subject to independent verification. Simple due diligence should have given her that answer. Based on the facts outlined in AC's opinion, AC took FAR more precautions than Hardy did. FAR more.
 
Jun 7, 2010
19,196
3,092
28,180
Far more? Far more with far in caps?

I don't really understand how you can come to this conclusion...
 
Mar 17, 2009
11,341
1
22,485
roundabout said:
Far more? Far more with far in caps?

I don't really understand how you can come to this conclusion...

Well maybe far more was a bit of an embellishment on my part (it was late :p), but comparing the two factual situations (assuming both AC and JH are telling the truth), AC took more precautions than JH. CAS as much admits she should have consulted a doctor on the point or had the supplements tested. I think the most damning piece (IMO) was the fact that only 1 of the 10 supplements she was using was actually subjected to independent testing.
 
May 26, 2010
28,143
5
0
Publicus said:
<snip>

Based on the facts outlined in AC's opinion, AC took FAR more precautions than Hardy did. FAR more.

Pity he didn't get his blood samples tested in Cologne before the TdF. ;)

Now there was a precaution he should have made.:D
 
Mar 17, 2009
11,341
1
22,485
Benotti69 said:
Pity he didn't get his blood samples tested in Cologne before the TdF. ;)

Now there was a precaution he should have made.:D

Indeed. Maybe next year he'll have a WADA/UCI chaperone with him 24-7 :p
 
May 19, 2010
173
0
0
Im sure if they could of used the contaminated supplements argument, contadors legal team would of used it. However they obviously knew they couldnt.

Im sure the first thing he did when he tested positive was go through what he ate at the tour. He is a professional athlete, Everything that went into his mouth pretour and during would of been recorded. im sure he personally would of been on to every supplements company to see if any CB is in there products. Also they are a pro cycling team, Someones job in the team is nutrition and making sure what they take isnt contaminated.

At the end of the day you cant say with 100% certainty that AC doped, but there was CB in his system and he and his legal team couldnt explain a MORE likely reason as to how it got into his body. Therefor he deserves to be banned. Simple.

I know alot of you will disagree with me but i feel in a way its worked out alright for him (for being found gulity, obvously would of been better to be cleared) . As he is able to start riding again in august. Hes two year ban will really only consist of 6-8 months not riding (hes voluntary ban was over the off season so he wouldnt of raced then anyway). yes he loses those races but im sure he would of much rather raced then not be able to. he knows he won those races.
 

Latest posts