Why (and How) Bert Should Appeal

[djconnel]

The point made by the OP is even if there were "no" (per standard test tolerance) contamination in the supplements, his blood test would be explained by contaminated supplements.

 

[Jeanne]

I really upset there it seems LOL. But, you'll recover

WHAT is going on here? Seriously; after Le Tour 2010 - when actually many in this forum were not so happy Mr. Contador won again and younger Schleck was somewhat more popular than now - I wrote something like I start feeling sorry for Contador, because no one seemed to be glad for him he won - and guess what, people started *****ing about what I said
and all the discussion how awkward he comes across in interviews and how his behaviour does not make him likeable and so on - but NOW there are actually people defending him like idunnowhat! He was a pretty amazing rider already back then! What has changed during the last 1,5 years, while he was an officially suspected doper, that people suddenly go mad about his case?! There are quite some riders that are called worse here than "Bert"

And by the way, many thanks to all the people who share their insights and knowledge here!

 

[mastersracer]

WHAT is going on here? Seriously; after Le Tour 2010 - when actually many in this forum were not so happy Mr. Contador won again and younger Schleck was somewhat more popular than now - I wrote something like I start feeling sorry for Contador, because no one seemed to be glad for him he won - and guess what, people started *****ing about what I said
and all the discussion how awkward he comes across in interviews and how his behaviour does not make him likeable and so on - but NOW there are actually people defending him like idunnowhat! He was a pretty amazing rider already back then! What has changed during the last 1,5 years, while he was an officially suspected doper, that people suddenly go mad about his case?! There are quite some riders that are called worse here than "Bert"

And by the way, many thanks to all the people who share their insights and knowledge here!

hard to know how anyone could feel sorry for him after reading the CAS ruling carefully. Ashenden's remarks in particular are pretty damning, as are the findings re plasticizers. Then there's the 'guilty by association' sections and the OP links, and an anonymous witness who was going to testify about events in 2005 but was blocked, as was Ashenden's testimony re the transfusion scenario.

 

[LaFlorecita]

and all the discussion how awkward he comes across in interviews and how his behaviour does not make him likeable and so on !

Actually I like the respectful, humble way he comes across in interviews, and I think his behaviour makes him even more likeable.

 

[bikeguy]

What I found very interesting was not the number of samples that didn’t pass inspection (earlier studies have come to a similar conclusion), but that the detection limit used for CB and other stimulants was 100 ng/g.

Actually all your theory depends on this value of 100 ng/g. And a value found in a single study does not really make a standard. Rather, in Europe, it looks like the standard is 100 ng per kilo of food.

 

[Jeanne]

Actually I like the respectful, humble way he comes across in interviews, and I think his behaviour makes him even more likeable.

well, those discussion were like 1,5 years ago. No idea what he is really like, since I never met him. Did you?

Btw, I'm sorry, I was a bit harsh towards you last time. I still don't share your opinion, but guess I can understand a girls (re)acting if there is sort of a real crush

 

[Merckx index]

The point made by the OP is even if there were "no" (per standard test tolerance) contamination in the supplements, his blood test would be explained by contaminated supplements.

Thank you. Someone gets it.

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.

Article 265 doesn’t sound coherent to me. The first part of it says if the athlete’s theory is the “most likely” of several scenarios. 40% would be most likely if the other two were 30%, but would not satisfy the balance of probability. When people can’t write more clearly than that they deserve to be challenged, if not ignored.

I think what that first clause is intended to mean is that if the theory satisfies a 51% probability, period. The second part of the article notes that if there are only two competing theories, the one considered more likely will by definition satisfy a 51% probability. I think they mean that if there are more than two, the one put forward by the athlete must be more than 50% of all the possibilities. But they don’t express that idea very well.

Now as to the 1/3:

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".

Look at article 265: “it is only if the theory put forward by the athlete is deemed most likely to have occurred among several scenarios”. The combined theories of meat contamination + supplement contamination are more likely than the theory of transfusion. The panel concluded this. I’m basically saying that you can lump meat and supplement theories together, because neither of them, according to my argument, can result in a sanction.

Of course he does - he/they are responsible for everything they consume.

No they aren’t. Let’s dispense with this myth of the athlete being responsible for everything they put into their bodies right now. If Bert could have proven that he tested positive from contaminated meat, he would have gotten off. Why? Because he is not responsible, and cannot be responsible, for what happens in the Spanish meat industry. There is nothing he can do about it. He can make sure that no one he is close to adulterates his food, but obviously he has no control over the processes that occur prior to the time the food is bought and prepared. He has to take it on faith that the meat they produce is not contaminated. He has made every reasonable effort, and that satisfies the no fault clause.

That’s why WADA agreed with the Mexican federation that the soccer players were not at fault for their CB positives. Their case was easier to establish, because it is recognized that contaminated meat is much more common in Mexico than in Spain. But the underlying principle is the same in both cases. The athlete is not responsible for what the meat industry does or does not do to his food.

So athletes are not, and never can be, completely responsible for the condition of everything they put into their bodies. No one in modern society can possibly achieve such a goal.

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.

To repeat, an independent test of any supplement that actually could have resulted in Bert’s positive would very likely have found that the supplement was clean. Yet you still find the athlete at fault? The Dutch have set up a system (NZVT) in which supplements are analyzed batch by batch. Their LOD for stimulants is 100 ng/g, so if Bert’s positive was caused by a contaminated supplement, that supplement, as I discussed earlier, would have been pronounced clean by NZVT. How can you sanction an athlete for using a supplement that has been approved by a national anti-doping organization? If this doesn't satisfy reasonable effort and no fault, what does? What’s the point of approving supplements if an athlete can still be sanctioned for using them?

Hardy’s case is different. In the first place, her reported level was 4 ng/ml—eighty times that of Bert. That tells us immediately that any supplement she consumed had to be very heavily contaminated. Was her positive in fact the result of a contaminated supplement?

Hardy’s supplements were tested at several labs. The lab (NSF) used by the manufacturer of her supplement, AdvoCare, found no CB in any of the supplements. Hardy hired two labs, ADR run by Don Catlin, and Equine Drug Test. Both reported CB in one of her supplements.

ADR says on its website that it detects stimulants such as CB at an LOD of 10 ng/g. This is ten times the NZVT detection limit, and might possibly account for the discrepancy with NSF. I don’t know the LOD for EDTL, but in the USADA report it’s implied that EDTL had an even lower detection limit, and they were using state-of-the-art equipment, so they probably could detect pg/g quantities.

But this shouldn’t have been necessary for Hardy. From her urine level, a rough minimum estimate of the amount of CB in her system would be 40 ug. For her to ingest this amount of CB from a supplement with a contamination level of 10 ng/g., she would have had to consume 4 kg! We know in fact that she consumed about 40 g, one-hundredth of that amount. Or to put it another way, for contamination to account for her positive, the supplement would have had to contain CB at a level of 1 ug/g. This is an unusually high level of contamination for any stimulant.

Catlin and the other scientists at the hearing, quite diplomatically, simply said that Hardy would have had to ingest “massive” amounts of supplement, and left it at that. Hardy herself argued that all she had to do is prove that CB was in the supplement, not that it was in the amounts required to cause her positive. This is obviously a weak argument, and no wonder AdvoCare filed a lawsuit against her.

So there is no way that Hardy’s positive could have been accounted for by a contamination level below the industry standard. As I have emphasized here, any supplement that could have caused Bert’s positive would be below the NZVT standard, and possibly below Catlin’s ADR standard. The CB in any supplement Bert allegedly took could be detected with more sensitive equipment, but one could say the same thing about meat that passes the Euro standard. One really can’t hold the athlete not simply to test the supplement, but to make sure that he uses the most sensitive equipment that happens to be available at the time. That’s why there are standards, so there can be a uniform level that everyone agrees on. This is not the case with testing the athlete himself, because of the zero tolerance rule, but zero tolerance has never applied to foods or other substances that are put into our bodies.

If you want to compare the Hardy and Contador cases, think of it this way. Imagine that, because of the realization that much of the meat in countries like Mexico and China is contaminated with CB, WADA issues a new ruling that athletes eat meat in these countries at their own risk. Thus meat in these countries is now treated the way supplements are right now. Hardy is like someone who eats meat in Mexico, demonstrates that it is contaminated, and gets a reduced sanction. She does not get off with no sanction because she is held responsible for eating meat in a country known to have a contamination problem.

My argument is that Contador is like someone who eats meat in Spain. His level of CB shows that the meat he ate passed the Euro standard. Thus his positive does not result from any negligence on his part. There is nothing he could have done to avoid the positive except not eat meat in Spain—or in Italy, France, Germany, etc. IOW, he would have had to avoid eating any meat whatsoever. Since this puts an unreasonable burden on the athlete, he is considered to be not at any fault.

 

[Dr. Maserati]

UCI Anti-doping Rules:

21. The following constitute anti-doping rule violations:
1. The presence of a Prohibited Substance or its Metabolites or Markers in a Rider’s bodily Specimen.
1.1 It is each Rider’s personal duty to ensure that no Prohibited Substance enters his body. Riders are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an
antidoping violation under article 21.1.

Warning:
1) Riders must refrain from using any substance, foodstuff, food supplement or drink of which they do not know the composition. It must be emphasized that the composition indicated on a product is not always complete. The product may contain Prohibited Substances not listed in the composition.
............

 

[Nilsson]

UCI Anti-doping Rules:

And what's your point? That you can't understand that there already have been athletes that have received ban reductions because of no significant fault or negligence (in situations of nutritional supplements)? Or, like Ovtcharov, Van Hout, Nielsen, the Mexican football players, etc. have been athletes who didn't receive any ban at all?

Stict liability isn't absolute, Doc. You (who has, from my understaning, read a decent amount of CAS cases) should know that...

 

[Dr. Maserati]

And what's your point? That you can't understand that there already have been athletes that have received ban reductions because of no significant fault or negligence (in situations of nutritional supplements)? Or, like Ovtcharov, Van Hout, Nielsen, the Mexican football players, etc. have been athletes who didn't receive any ban at all?

Stict liability isn't absolute, Doc. You (who has, from my understaning, read a decent amount of CAS cases) should know that...

I never said it was.

However the athlete is ultimately responsible for what they consume.

 

[Merckx index]

Riders must refrain from using any substance, foodstuff, food supplement or drink of which they do not know the composition.

This is a good example of how UCI and other sports organizations are behind the times. No one can possibly apply this rule to all the food that they eat. I can be reasonably sure if I eat Spanish meat that it contains less than 100 ng/kg of CB. I have no assurance whatsoever that it might not contain, say, 50 ng/kg of CB, an amount that could trigger a positive test at Cologne.

Likewise, if I use a supplement approved for use by MLB, the NFL, or NZVT, I can be assured that it contains less than 100ng/g of CB. I have no assurance that it might not contain 75 ng/g., an amount that could result in a level like Bert’s, not to mention lower values that have been reported in a few athletes.

What UCI would have to do is require athletes to test every piece of meat they eat, and every serving of supplement they take. Wrt latter, Don Catlin has pointed out that contaminants in supplements may not only vary from batch to batch, but even, e.g., from tablet to tablet in a single batch.

 

[Dr. Maserati]

This is a good example of how UCI and other sports organizations are behind the times. No one can possibly apply this rule to all the food that they eat. I can be reasonably sure if I eat Spanish meat that it contains less than 100 ng/kg of CB. I have no assurance whatsoever that it might not contain, say, 50 ng/kg of CB, an amount that could trigger a positive test at Cologne.

Likewise, if I use a supplement approved for use by MLB, the NFL, or NZVT, I can be assured that it contains less than 100ng/g of CB. I have no assurance that it might not contain 75 ng/g., an amount that could result in a level like Bert’s, not to mention lower values that have been reported in a few athletes.

What UCI would have to do is require athletes to test every piece of meat they eat, and every serving of supplement they take. Wrt latter, Don Catlin has pointed out that contaminants in supplements may not only vary from batch to batch, but even, e.g., from tablet to tablet in a single batch.

Then if you are a professional cyclist who is paid in the millions why would you risk using 27 different types of supplements as the Astana team claim?

 

[Nilsson]

Then if you are a professional cyclist who is paid in the millions why would you risk using 27 different types of supplements as the Astana team claim?

Because you do can't win the Tour on water, bread, spaghetti and a vitamin pill from the local drugstore. 27 sounds more than it is. Vitamins, minerals, amino acids, recovery drinks, special food and nutrients, etc. and all variations (in taste, form, composition and individual needs).

Especially since 'no needle' has become the standard, through the years, more and more 'nutrients' have to go through the mouth...

 

[Ulle Relaxes]

Key error in CAS report on Contador:

http://www.cyclingnews.com/news/key-error-in-cas-report-on-contador

How can it be a 'Key Error' if

“In all honesty, we don’t attach too much importance to it because the mistake does not affect the decision,” Fran Contador explained. “We have asked for it to be changed to avoid any adverse interpretations, but everyone knows that the control was carried out on the 21st. For our lawyers it’s not relevant, because they are studying the complete resolution to see if we’ve got reason for a complaint.”

I mean seriously Mr Cossins make up your mind.

 

[roundabout]

This is a good example of how UCI and other sports organizations are behind the times. No one can possibly apply this rule to all the food that they eat. I can be reasonably sure if I eat Spanish meat that it contains less than 100 ng/kg of CB. I have no assurance whatsoever that it might not contain, say, 50 ng/kg of CB, an amount that could trigger a positive test at Cologne.

Likewise, if I use a supplement approved for use by MLB, the NFL, or NZVT, I can be assured that it contains less than 100ng/g of CB. I have no assurance that it might not contain 75 ng/g., an amount that could result in a level like Bert’s, not to mention lower values that have been reported in a few athletes.

What UCI would have to do is require athletes to test every piece of meat they eat, and every serving of supplement they take. Wrt latter, Don Catlin has pointed out that contaminants in supplements may not only vary from batch to batch, but even, e.g., from tablet to tablet in a single batch.

Wasn't it stated that Contador ingested something like 10 times as much clenbuterol than what is present in the meat that passes EU tests?

 

[python]

Key error in CAS report on Contador:

http://www.cyclingnews.com/news/key-error-in-cas-report-on-contador

These typos/errors were picked up and verified by myself, masteracer and m. index days before the correction. but they don't change much...

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). so both cited typos are likely indeed typos
…

 

[ChrisE]

My argument is that Contador is like someone who eats meat in Spain. His level of CB shows that the meat he ate passed the Euro standard. Thus his positive does not result from any negligence on his part. There is nothing he could have done to avoid the positive except not eat meat in Spain—or in Italy, France, Germany, etc. IOW, he would have had to avoid eating any meat whatsoever. Since this puts an unreasonable burden on the athlete, he is considered to be not at any fault.

Sounds like you are coming around to having a minimum threshold for CB.

 

[Pandora]

However the athlete is ultimately responsible for what they consume.

So, dear athletes, better start growing your own food. Because you never know... You'll train in free time, after feeding your animals and tending your crops.

 

[Publicus]

Then if you are a professional cyclist who is paid in the millions why would you risk using 27 different types of supplements as the Astana team claim?

What about the professional cyclist who is only paid in the tens of thousands?

 

[Dr. Maserati]

Because you do can't win the Tour on water, bread, spaghetti and a vitamin pill from the local drugstore. 27 sounds more than it is. Vitamins, minerals, amino acids, recovery drinks, special food and nutrients, etc. and all variations (in taste, form, composition and individual needs).

Especially since 'no needle' has become the standard, through the years, more and more 'nutrients' have to go through the mouth...

27 is the number quoted from the CAS decision.
As for the no needle policy - nice try but that did not start until 2011 and with Astanas history I doubt the implemented a no needle policy.

What about the professional cyclist who is only paid in the tens of thousands?

What about them?
Same rules apply to them. Hardy was hardly an exceedingly well paid athlete.
They don't have an excuse either when it comes to supplements but a well paid athlete should be even more cautious.

 

[MarkvW]

What about the professional cyclist who is only paid in the tens of thousands?

Yes! The professional cyclist without any professional or technical training who has devoted himself to riding a bike for the last ten plus years? Who can't attain anything like "financial security?" Who is at the complete mercy of his team director? Who can be replaced like a machine part?

 

[Nilsson]

27 is the number quoted from the CAS decision.

I know, but I meant it sounds worse than it is. 27, on a total of supplements/products he uses, isn't extraordinary (if that was a problem for you)...

As for the no needle policy - nice try but that did not start until 2011 and with Astanas history I doubt the implemented a no needle policy.

I didn't say 'trough the years' and 'more and more' (standard) for nothing. The no needle policy, of course, was completed last year, but has been in progress already the years before that.(It seemed unnecessary to me to overdo the writing on that topic, because I was of the opinion you knew).

Nevertheless, already before the completion last year (mostly extending prohibition to vitamins, and for instance a 48 hour break after cortisone injections) lots of methods have already been forbidden/eliminated, like saline infusions or the use of syringes, without medical indication...

 

[BillytheKid]

Berto knows he got a good deal with the backtrack on the 2-years. No way he's gonna mess that up. He will be racing again soon, and I think that's all that matters to him.

 

[Merckx index]

CN seems to have botched the “error” story worse than the error itself. It was reported 1 ug/ml, not “1 picogram” (which by itself is not even a concentration), at least in the report i have been reading.

Is it possible there is an updated or revised report, that says "1 picogram"? As I have pointed out before, the reported 1 ug/ml value is the real error, much worse than the date of the test. It should be some value in picograms/ml, so CN's reported value is a start in the right direction, though it should picogram per unit volume, and 1 pg/ml. would not be consistent with the subsequent urine values, eiher.

Actually all your theory depends on this value of 100 ng/g. And a value found in a single study does not really make a standard. Rather, in Europe, it looks like the standard is 100 ng per kilo of food.

It’s not a value found in a single study, it’s a widely used standard, the basis, as I noted, for the Dutch system, and I believe also MLB and the NFL. It’s certainly true that much more sensitive detection standards can be used, but they depend on the appropriate technology being available. It may be difficult and expensive to ask supplement manufacturers to use the most sensitive methods available, so a reasonable standard is put into place, one that it is agreed everyone will follow.

Meat is different from supplements in two key ways. First, taking supplements is considered much more of a choice. It would be very difficult for WADA to discourage athletes from eating meat under any circumstances. That is considered a right that should take precedence over any doping rules in a way that consuming supplements is not.

And second, in theory, there should be no CB in meat. If there is, it results from intentional doping. CB may contaminate supplements from accidental causes, and is therefore more difficult to control.

Then if you are a professional cyclist who is paid in the millions why would you risk using 27 different types of supplements as the Astana team claim?

For the same reason they do other stuff that many of us watching regard as ill-advised if not downright crazy: perceived low risk/reward ratio.

Understand that I have no problem with athletes getting sanctioned for contaminated supplements when they have been warned in advance (though you and I know that many, maybe most, contaminated supplement cases are really about intentional doping; that in effect is a major reason why sanctions are considered necessary. To discourage using the supplement as an excuse). But the key word is “contaminated”. When the supplement is not contaminated by a widely used standard, it’s hard to argue that the athlete did not do everything reasonable to avoid a positive.

Sounds like you are coming around to having a minimum threshold for CB.

Yes, it probably does, but I’m not. Bert remains a special case. Most athletes do not get tested twice in a short period of time, revealing a negative before the positive. So a very tiny level of CB can result from a very large intentional dose taken a week or more earlier. That being the case, a threshold does nothing to separate intentional from accidental doping. I continue to believe these cases can only be resolved on an individual basis, taking all the contingent facts into account. If athletes were tested regularly several times a week I might change my mind, but I don’t expect that to happen.

 

[ChrisE]

Yes, it probably does, but I’m not. Bert remains a special case. Most athletes do not get tested twice in a short period of time, revealing a negative before the positive. So a very tiny level of CB can result from a very large intentional dose taken a week or more earlier. That being the case, a threshold does nothing to separate intentional from accidental doping. I continue to believe these cases can only be resolved on an individual basis, taking all the contingent facts into account. If athletes were tested regularly several times a week I might change my mind, but I don’t expect that to happen.

So you argue that it is possible that the athlete has done everything possible to avoid contamination due to supplements, but still should be sanctioned if he is found positive from a supplement?

I understand a threshold lets some cheats go. Is that more important than sanctioning innocent athletes?