Why (and How) Bert Should Appeal

[Merckx index]

Well, it seems I was wrong that the blood test of CB rules out transfusion. Apologies to those who were reading along.

It turns out that when most drugs are administered IV, they immediately distribute into a far larger volume than blood, which lowers the theoretically expected blood concentration. I didn't realize this, because radioactive tracers are routinely used to measure blood volume. This is based on the premise that they distribute only into blood. But apparently the same principle does not work for most drugs. I have checked some studies, and following IV administration, the peak blood value is consistently 30-50 times lower than one would expect if all of the drug were distributed only into the blood stream. It would probably be the same for CB.

The theoretical blood level following IV administration of CB would still be somewhat higher than that following oral, maybe 2-3 times higher. So a very low value like 1 pg/ml probably favors oral ingestion significantly. But I wouldn't say it's a slam dunk, it is just one piece of evidence on the scale.

Just to be clear, I have always thought Bert probably transfused, because of the DEHP value. The question is whether transfusion could be the source of the CB. There are still problems with this. Bert’s team raised the objection that it would take a very high dose of CB to get enough in a small volume of blood used for transfusion. One of WADA's counter points was (apparently) that a very low dose of CB, just a few hundred ng, would be effective if taken IV. But if an IV dose is distributed into a far larger volume than just the blood, the difference in effectiveness between oral and IV would not be that great. Any drug taken IV will of course act faster, it has a head start to its target, but the total effect would not be that much greater. So the objection from Bert's side that the dose would have to be quite high, though not the deal-breaker they claimed it to be, does carry some weight.

So I think transfusion alone and transfusion plus contaminated supplement are still both viable hypotheses. As I noted in my previous post (edited), Bert might have taken a contaminated supplement shortly before his July 20 test and still tested negative. This would eliminate the need for separate transfusions on two days, as well as the need to take a high dose of CB to get enough in the withdrawn blood.

My larger point, though, is still valid. If CAS wants to rule that it was contaminated supplement, they should confront the fact that it almost certainly was clean by antidoping standards.

 

[Semper Fidelis]

It's not that difficult, Sniper. If the numbers are right, it's impossible a transfusion caused the clen positive..

With only 1 pg/ml in a blood sample in the morning, and 50 pg/ml hours later in a urine sample. It rules out any form of intravenous administration and points to digestion of some kind of contaminated food substance as the origin of clenbuterol...

troll fanboy blind to the Bang Bang truth. Oldboy is busted, dirty....done.

 

[Semper Fidelis]

Actually you have linked an article where Mondenard says he doesn't believe the contaminated supplement theory holds because Contador declared he used the same ones during the entire TdF and wasn't positive before the AAF. Basically the same defence AC used for not agreeing with supplement-theory. This was covered already quite extensively by Python, MI and Nilsson and lot's of other people if you would have cared to read their contributions instead of immersing yourself in triumphalism. He even goed as far as to say that even the steak-theory holds more chance of being true. However (and even though my French is lousy) at no pint does he state that transfusion is the most likely source. He even states that he feels the penalty was way too high given the low concentrations found.

This quote you use:



That quote cannot be attibuted to Mondenard but is from someone who comments on his article. It is just one guy's opinion and yes, that person seems to be as ingnorant as you are.

Regards
GJ

Who cares. CapPistol is done until the V. Bang Bang BUSTED.

 

[The Hitch]

So Contador isnt going to appeal?

Whats the deadline?

 

[LaFlorecita]

So Contador isnt going to appeal?

Whats the deadline?

Around 6th of March.

 

[TourOfSardinia]

Another perspective ...

I'd just like to say that if AC appeals or not we fans have had the best value from him in terms of on-road presence/cycling joy.

Although his wins have been taken away - he has pretty much been on the been on the road for prime-racing time - ever a joy to watch - until last month, and now we fans have but a 6 month wait to see him perform again.

 

[bikeguy]

As for transfusion, just to go over the argument again very briefly: A blood level of 1 pg/ml puts an upper limit on the amount of CB transfused at about 10 ng.

How did you get these numbers? This study
http://www.ncbi.nlm.nih.gov/pubmed/4045696
suggests that an amount of 200 ng would lead to a blood level in the pg/ml range. That's 20 times more than what you claim.

From Bert's four positive urine tests, we know he passed a minimum of 100-150 ng from his body.

Agreed. A value of 200 ng fits well the concentrations found in the urine tests.

 

[Merckx index]

How did you get these numbers? This study
http://www.ncbi.nlm.nih.gov/pubmed/4045696
suggests that an amount of 200 ng would lead to a blood level in the pg/ml range. That's 20 times more than what you claim.

The Yamamoto study involved oral administration. The point I was making is that when a drug is administered IV, blood levels are higher, so an actually measured blood level implies a lower amount taken. However, in my last preceding post, I acknowledged that for most drugs, the difference is not as great as I had thought.

The key parameter is the volume of distribution (V(d)). For most drugs, the bloodstream is like a very leaky bucket. When the drug is administered IV, much of it very quickly passes out of the blood stream and distributes into other tissues. So you generally cannot multiply the blood concentration by the total volume of blood to determine the amount administered IV. Rather than the total volume of blood, you must use another, often much larger volume that has to be determined experimentally. You administer a known quantity of drug into the blood, measure the concentration (more precisely, measure concentrations over time, then extrapolate to zero time), then divide the latter into the former to get what amounts to an effective volume of distribution. For a few drugs, it may be similar to the volume of blood. For others it is much higher, and for some drugs, enormous.

AFAIK, this value has never been determined for CB in humans. There was a study in horses a few years ago that came up with a value of about 1600 ml/kg. Without going into details, if this value were the same in humans, hypothetical of course, a blood value of 1 pg/ml would indicate a maximum amount of CB taken IV of 150 ng or less. This would be fairly strong evidence against transfusion. While I noted that Bert passed 100-150 ng in his urine, that same Yamamoto study concluded that only about 20% of an oral dose of CB appears in the urine in the first three days. Hence, a rough estimate of 500 ng ingested. The same approximate value can also be derived by using the known half-life of CB in blood of 35 hours, again, from that Yamamoto study.

The only other relevant study I've been able to find involved administration to humans of mabuterol. This drug is quite similar in structure to clenbuterol, and the kinetics they reported were quite similar to those reported by Yamamoto et al. for clenbuterol. This study found a V(d) of more than 5000 ml/kg. If CB has a similar V(d), we could calculate a transfused amount of about 370 ng, which is within the range estimated from urine concentrations. However, this study was done in the 1980s, when some of the problems in estimating V(d) were not as well appreciated. In particular, it is very tricky to estimate V(d) using oral doses, which is what this study did; the resulting value is often overestimated.

One further relevant fact is that the bioavailability of CB is 90% or greater. This refers to the amount taken orally which is actually absorbed into the bloodstream and distributes to tissues. Generally, a very high bioavailability means that peak blood levels from oral administration will be nearly as high as those from IV administration. They will never be as high, because of the lag between oral ingestion and absorption into the blood, but they will generally be within a factor of 2-3. So this again suggests that the 1 pg/ml value probably could have resulted from transfusion as well as oral ingestion.

In retrospect, I think Bert handled his case poorly, for several reasons. He should have kept his options open, meaning while it was all right to argue all along that it couldn't be a contaminated supplement, he still should have had the supplements tested. The evidence against Hardy was considerably more incriminating: 1) she had a much higher urine level than Bert; 2) tests of the supplements never found a level of contamination remotely close to what would be needed to account for her positive; and 3) it's not clear whether her positive test was preceded by a negative one (it was initially reported that way, but later tests seemed to indicate the earlier test was also positive). Yet she got her sanction reduced to one year for making the effort. I think Bert would have gotten one year if he had been more cooperative in that way, rather than insisting that it had to be meat.

And possibly he could have gotten off completely. In addition to testing the supplements, he also should have commissioned a study of IV administration of CB, to determine whether his blood value could rule out transfusion (and he should have taken the initiative to have his blood sample tested in the first place). Using radioactive tracer, this would have been very cheap to run (much cheaper than testing the supplements), and with no downside. Unlike a hairtest, where a positive result would have been incriminating, he had nothing to lose by a pharmacokinetic study like this. If a) it turned out that the V(d) of CB was low enough to rule out transfusion; and b) some study found CB contamination at low levels in one of his supplements (below the antidoping standards I discussed previously), I think he would have gotten off completely.

Volume of distribution:
http://physiologie.envt.fr/spip/IMG/pdf/Volumes_of_distribution.pdf

CB study in horses:
http://onlinelibrary.wiley.com/doi/10.1111/j.1365-2885.2004.00553.x/full

Mabuterol study:
http://www.ncbi.nlm.nih.gov/pubmed/6152164

Edit: After some more research into this, I see that an oral dose can be used to determine V(d) if a) all or virtually all of the drug is absorbed into the bloodstream (bioavailability = 1.0), and absorption is rapid relative to clearance. This is basically what was done in the mabuterol study I cited previously. Both of these conditions are also met with clenbuterol. Bioavailability is variously reported at 89-98%, and virtually all of it enters the bloodstream within 2-3 hours, vs. a clearance half-life of 35 hours.

IOW, the peak blood value following an oral dose will be very close to that following an IV dose. In the Yamamoto study, a 40 ug oral dose resulted in a peak blood level of 200 pg/ml. Extrapolating to lower concentrations, a peak blood level of 1 pg/ml corresponds to a dose of 200 ng. However, in Bert’s case, the blood test might have taken place as long as fourteen hours after ingestion of CB (the time period between the July 20 negative urine test and the July 21 blood test). Since the half-life for clearance of CB from blood is about 35 hours, CB levels would fall about 25% in fourteen hours. So we can estimate a maximum amount of CB ingested as 267 ng., for either oral or IV route.

This is within the range of values estimated from the urine tests. Though it is at the low end, it's believable when one takes into account individual variations, plus uncertainty in the 1 pg/ml value reported by CAS. I'm not sure even Cologne can detect levels as low as 1 pg/ml., certainly not with high precision. So this objection to transfusion as a source of CB can be eliminated.

Meanwhile, a new study of contaminants in supplements, including clenbuuterol, was just published:

http://www.ncbi.nlm.nih.gov/pubmed/22150438

I haven’t been able to access the whole article for details, but I did learn from another document that the LOD in this study was, again, 100 ng/g. This is further support for the notion that athletes should not be responsible for levels of contamination below these levels.

Update: I was able to access the complete article published by Rebiere et al., published just a few weeks ago, that I referred to in my previous post. It turns out they were looking for banned substances that were intentionally added to supplements, to improve their effects, rather than accidental contamination. This, plus the need to use analytical methods that could detect more than thirty different substances simultaneously, resulted in a rather high limit of detection (LOD), or actually, limit of quantification (LOQ). The latter is the lowest level of a substance that can be detected with some specified level of precision, and is somewhat higher than the LOD. The LOQ for clenbuterol in this study was 1.3 ug/ml. The LOD would typically be about half of this, so it would be at least five times the 100 ng/g. standard used by the Dutch system.

Clenbuterol was found in two supplements, at levels of 15-20 ug/tablet. This is at the low end of what is usually considered a therapeutic dose. Since all the supplements tested were designed for weight-loss, this was not surprising.

 

[Merckx index]

I found another article that led me to another major supplement-testing laboratory, HFL Sports in Cambridge, UK. They work together with two other drug testing labs, Informed-Sport and Informed-Choice. Both of them use the 100 ng/g. standard as LOD for clenbuterol and other stimulants that is also used by the NZVT Dutch system. This appears to be based on an international standard, ISO 17025, which is closely allied with WADA standards. From the HFL website:

WADA screening is specifically designed for urine and blood analysis. There is no such thing as a 'WADA test' for anything else. However, WADA testing for urine/blood is carried out to ISO 17025 standards. ISO 17025 is an international analytical capability standard - any tests that are accredited to this standard have been developed and validated in line with international requirements and are regulated by external authorities.
The testing lab used by INFORMED-CHOICE (HFL Sport Science) is a WADA-experienced lab that performs testing of supplements to the same international analytical standard (ISO 17025) that WADA urine/blood testing is carried out to.

Further information on HFL, and on Informed-Choice (Informed-Sport says essentially the same thing):

HFL Sport Science is a world-renowned sports doping control and research laboratory, with over 49 years of expertise in anti-doping in sport. HFL has published over 300 scientific papers on methods for detection of trace levels of substances that are prohibited in sport and has over 450 man-years of research into doping control.

HFL's testing capability for supplements/ingredients includes the analysis of over 146 substances that are considered prohibited in sport and substances that pose a threat in respect of product contamination. These substances include anabolic agents, stimulants, beta-2-agonists, recreational drugs, masking agents, etc.

Testing methods used for a range of substances from these categories have been validated and accredited to the ISO 17025 standard in supplements/ingredients, in each of the relevant matrices: powders, bars, liquids, capsules, tablets, etc., with defined method capabilities/reporting limits. HFL has held this accreditation since 2003, granted by UKAS (United Kingdom Acceditation Service, see http://www.ukas.com: laboratory no. 1187).

Other prohibited substances tested for are not explicitly covered within the ISO 17025 accreditation schedule for supplements/ingredients; however, similar analytical methods and quality control procedures are employed to those used for the analysis of the accredited compounds.

As a doping control laboratory, HFL works directly with sports authorities, national anti-doping organizations and national governing bodies worldwide. Providing advice and expert support, HFL is able to represent the views of partners and assist in the shaping of future regulation.

HFL was only the 34th laboratory in the world to be accredited by WADA/IOC. Experience within this elite environment has provided a unique understanding of the regulatory environment from a laboratory perspective.
WADA now prohibits any of its accredited labs from providing testing services to supplement companies. HFL voluntarily withdrew its WADA accreditation in 2007, ensuring that a high integrity service could be provided to address issues of quality assurance within the trade.
HFL remains part of the WADA community, undertaking WADA-funded research contracts into drug detection in sport.

INFORMED-CHOICE is a supplement testing and certification program which provides assurance to athletes that products carrying the INFORMED-CHOICE mark have been regularly tested for prohibited substances in sport and manufactured to high quality standards. Responsible supplement companies have made INFORMED-CHOICE part of their existing quality assurance systems to ensure their products are safer for athletes to use.
Research has shown that some supplement products have been found to be contaminated with low levels of steroids and stimulants that are prohibited by WADA (World Anti-Doping Agency) and other sporting bodies. The INFORMED-CHOICE program aims to work closely with supplement manufacturers and suppliers by providing high quality analytical testing to minimize the incidence of banned contaminants finding their way into sport.

The INFORMED-CHOICE certification program was established in 2007 by one of the world's leading doping control laboratories, HFL Sport Science. Although HFL has been testing supplements since 2002, it became clear that there was a need for a comprehensive certification program which not only tested products for banned substances, but also ensured that products were manufactured with the highest quality standards.

So to summarize and reiterate, if a supplement was the source of Contador’s positive test for CB, it was a supplement that was clean by an internationally recognized standard that was designed to be consistent with WADA’s own testing system. An athlete taking such a supplement in reasonable quantities would test negative not only at the minimum required detection limit of 2 ng/ml, but in most cases much lower. I think the only wiggle room for a prosecution would be the word "safer" rather than "safe" in the Informed-Choice quote. They don't guarantee that a supplement clean by their standards will not result in a positive test, only that it is less likely to do so. Still, the whole point of having these accreditation services is to allow athletes to consume supplements without fear of testing positive.

Speaking of which, I wonder if any/all of the supplements on the list that Astana provided at the CAS hearing are listed by HFL Sports. IIRC, the identify of these manufacturers was not made public by CAS or Contador?

 

[Porphyry]

Thanks for continuing to work on this, MI, and for sharing your findings.

 

[Nilsson]

Interesting pieces again, MI.

Have you heard any rumors (again) about a possible appeal?

 

[cycladianpirate]

Hasn't it sunk in yet?

There are no grounds for appeal. There was no finding that contaminated supplements caused the positive.

Oddly enough, and had the judgment gone the other way, it is WADA who have a decent ground of appeal. As a matter of law (not science) CAS ruled (in Contador's favour) that it behoved the appellants to put forward alternative hypotheses to his positive test and so they did - the blood transfusion and the dodgy supplements. And so these were weighed in the balance. This is stretching the interpretation of the code too far. The onus is squarely on the athlete.

But, in any event to suggest that CAS made a finding that supplements caused the positive is utter nonsense - RTFJ. Hence, the scientific studies mentioned here are, though interesting, utterly irrelevant.


Contador failed to convince the court, on a balance of probability that it wasn't his fault. And That Is It.

You could tell Bertie knew he was in difficulties when he hired an English Brief.....

 

[Merckx index]

Hasn't it sunk in yet?

There are no grounds for appeal. There was no finding that contaminated supplements caused the positive.

Oddly enough, and had the judgment gone the other way, it is WADA who have a decent ground of appeal. As a matter of law (not science) CAS ruled (in Contador's favour) that it behoved the appellants to put forward alternative hypotheses to his positive test and so they did - the blood transfusion and the dodgy supplements. And so these were weighed in the balance. This is stretching the interpretation of the code too far. The onus is squarely on the athlete.

But, in any event to suggest that CAS made a finding that supplements caused the positive is utter nonsense - RTFJ. Hence, the scientific studies mentioned here are, though interesting, utterly irrelevant.

I agree with you that the onus should have been on the athlete, not WADA. I never really understood why WADA had to propose and defend alternative scenarios, that they had an “obligation to cooperate in elucidating the facts”. And I doubt there will be an appeal. I believe if there is, it will have to be announced within a few days.

That said, the Panel did indeed make a “finding” with regard to contaminated supplements:

the Panel considers it very unlikely that the piece of meat ingested by him was contaminated with clenbuterol, it finds that, in light of all the evidence on record, the Athlete’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat. This does not mean that the Panel is convinced beyond reasonable doubt that this scenario of ingestion of a contaminated food supplement actually happened. This is not required by the UCI ADR or by the WADC, which refer the Panel only to the balance of probabilities as the applicable standard of the burden of proof.

Many people seem to think that just because the panel did not state that it was certain that a contaminated supplement was the cause of the positive, this is not a “finding”, that it doesn’t really mean anything. The preceding passage should make it quite clear that a finding does not have to be based on beyond reasonable doubt, but only on balance of probabilities, and that the panel itself asserted that contaminated supplement satisfied this standard. This is also apparent from the opening statements of both WADA and UCI:

WADA:

The balance of probability standard entails that the athlete has the burden of convincing the Panel that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.

UCI:

Mr Contador’s burden [is] to show that his thesis of meat contamination is correct or, at least, that it is more likely than any possible route of ingestion and that it is more likely to have occurred than not to have occurred…he must prove on a balance of probability that contaminated meat was the source of the presence of the clenbuterol…Mr Contador has to show that this possible route of ingestion is more likely to have happened than not to have happened, compared to the likelihood of each of the other possible routes of ingestion.

My point all along has been that since a contaminated supplement would be clean by internationally recognized standards—just as meat in Europe is clean by internationally recognized standards—one can substitute “contaminated supplement” for “contaminated meat”. If you do this in the UCI statement, it is clear Bert has met his burden.

If the panel had bought the contaminated meat scenario, Bert would have escaped sanction. Nobody, including the panel, would have argued that it was certain that he had ingested contaminated meat, only that this was the most probable of all the possible explanations. And nobody, including you, would have argued that this was not the panel's finding. The panel itself has concluded exactly the same thing with regard to contaminated supplements. It was clear before the hearing began that they would never conclude anything more than balance of probabilities, and never conclude anything less.


As far as an appeal goes: Well, supposedly one has to appeal on the basis of a procedural error. I think one was made. The procedure assumed that there was only one non-sanctionable explanation for the clenbuterol positive. This assumption underlay the entire hearing. But in fact there are two non-sanctionable explanations.

In article 482, the Panel curiously draws an analogy between contaminated meat and contaminated supplement:

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 consumer, the above-described precautions cannot exclude that a contaminated batch of supplements reaches an athlete.

The Panel should have added, but didn’t, that if contaminated meat in Spain and Europe did in fact reach Contador, he would have not been sanctioned. So by their own analogy, even not taking into account the international standards for testing supplements, but only the quality controls by suppliers that this quote was in reference to, Contador should not have been sanctioned.

 

[Dr. Maserati]

I agree with you that the onus should have been on the athlete, not WADA. I never really understood why WADA had to propose and defend alternative scenarios, that they had an “obligation to cooperate in elucidating the facts”. And I doubt there will be an appeal. I believe if there is, it will have to be announced within a few days.

They didn't - but CAS were covering the possibility that any appeal would be based on Swiss law, so if they apply it in their conclusions it closes that particular route to appeal. Pretty smart.

I doubt Bert will appeal the ban - however expect an appeal if he is hit with a large fine. But CAS decided to make that ruling separate, which again is pretty smart as any appeal will be on that finding.

I
That said, the Panel did indeed make a “finding” with regard to contaminated supplements:



Many people seem to think that just because the panel did not state that it was certain that a contaminated supplement was the cause of the positive, this is not a “finding”, that it doesn’t really mean anything. The preceding passage should make it quite clear that a finding does not have to be based on beyond reasonable doubt, but only on balance of probabilities, and that the panel itself asserted that contaminated supplement satisfied this standard. This is also apparent from the opening statements of both WADA and UCI:

WADA:


UCI:


My point all along has been that since a contaminated supplement would be clean by internationally recognized standards—just as meat in Europe is clean by internationally recognized standards—one can substitute “contaminated supplement” for “contaminated meat”. If you do this in the UCI statement, it is clear Bert has met his burden.

If the panel had bought the contaminated meat scenario, Bert would have escaped sanction. Nobody, including the panel, would have argued that it was certain that he had ingested contaminated meat, only that this was the most probable of all the possible explanations. And nobody, including you, would have argued that this was not the panel's finding. The panel itself has concluded exactly the same thing with regard to contaminated supplements. It was clear before the hearing began that they would never conclude anything more than balance of probabilities, and never conclude anything less.

Its not really a "finding" per se - there were only 3 possible scenarios presented - when under WADA rules that is not necessary.

Once the meat contamination story was deemed 'unlikely' it was over for Contador- after that it is just CAS dotting the i's and crossing the t's to mak sure that their decision could not be successfully appealed.

 

[Merckx index]

They didn't - but CAS were covering the possibility that any appeal would be based on Swiss law, so if they apply it in their conclusions it closes that particular route to appeal. Pretty smart.

That’s not the whole story, because even at RFEC, WADA had to propose an alternative scenario. In fact, four or five of them were listed, and a considerable part of that hearing was devoted to evaluating the possibility of transfusion. Swiss law mandates, I believe, that three scenarios be proposed, but I was questioning something more fundamental, that WADA had to propose any scenarios at all.

Its not really a "finding" per se - there were only 3 possible scenarios presented - when under WADA rules that is not necessary.

What does the number of scenarios presented have to do whether a conclusion is a finding or not? Like cycladian, you keep insisting it wasn’t a finding, but provide no evidence of any kind to back up this view. You might begin by providing a precise definition of the term. Mine is pretty simple. When someone precedes a stated conclusion with the words “we find”, I think that conclusion can be called a finding. Now that may not be a legal definition, but if there is in fact a legal definition of finding, I'm quite sure that a group of lawyers would be careful about what they apply the words "we find" to.

Again, I think you and some others are conflating "finding" with "shown beyond reasonable doubt", when in fact finding just means "shown to the level of evidence required". The CAS Panel concluded that supplement contamination was demonstrated to the balance of probabilities as the latter criterion was defined. The fact that this is only one conceivable possibility, and that the main purpose of identifying such a possibility was to rule out meat contamination, does not make it less of a finding.

Once the meat contamination story was deemed 'unlikely' it was over for Contador- after that it is just CAS dotting the i's and crossing the t's to mak sure that their decision could not be successfully appealed.

Again, this is ignoring the point that "supplement contamination" can be substituted for "meat contamination". If one concedes this, then it's not over.

As I said before, I think an appeal is unlikely. I expect this decision to stand. But everyone in this case--UCI, WADA, Contador's team and CAS--has IMO dropped the ball here. I can imagine ways in which this decision could come back to bite them later, for example, an athlete who tests positive in the future demonstrates that it came from a contaminated supplement that met the ISO standard for contaminant-free. I can imagine the national organization, or CAS if the case got that far, concluding that a reduced sanction of one year was appropriate, and putting forth various arguments as to why that reasoning should not have applied to Contador.

But I can further imagine the athlete's team arguing that there is no legally viable distinction to be drawn between contaminated Euro meat and contaminated Euro supplements. The traditional distinction, which is surely what CAS would appeal to if asked right now, is that meat is inspected by the government, so an athlete deserves protection from testing positive from contaminated meat. Whereas supplements are not, and the athlete takes them at his own risk.

But the recent emergence of approved supplements by various antidoping organizations means that similar standards are being applied to them, and this makes it very difficult to argue that an athlete is not deserving of the same protections as provided for meat. The additional traditional argument that everyone has a right to eat safe meat, while supplements are a choice, will also be very hard to maintain. The number of people taking supplements is enormous, it might even approach the number eating meat.

 

[Dr. Maserati]

That’s not the whole story, because even at RFEC, WADA had to propose an alternative scenario. In fact, four or five of them were listed, and a considerable part of that hearing was devoted to evaluating the possibility of transfusion. Swiss law mandates, I believe, that three scenarios be proposed, but I was questioning something more fundamental, that WADA had to propose any scenarios at all.

Here were the 5 scenario's presented during RFEC - check out number 5:

i. - Ingestion of food supplements contaminated with Clenbuterol.
ii. - Ingestion of food contaminated with Clenbuterol.
iii. - Transfusion of blood products containing Clenbuterol.
iv. – Intake of Clenbuterol microdoses.
v. -___________

As to your blue highlighted question - as I said already WADA did not have to, however they did because they knew a robust defense was going to be put forward by Contador.

What does the number of scenarios presented have to do whether a conclusion is a finding or not? Like cycladian, you keep insisting it wasn’t a finding, but provide no evidence of any kind to back up this view. You might begin by providing a precise definition of the term. Mine is pretty simple. When someone precedes a stated conclusion with the words “we find”, I think that conclusion can be called a finding. Now that may not be a legal definition, but if there is in fact a legal definition of finding, I'm quite sure that a group of lawyers would be careful about what they apply the words "we find" to.

Again, I think you and some others are conflating "finding" with "shown beyond reasonable doubt", when in fact finding just means "shown to the level of evidence required". The CAS Panel concluded that supplement contamination was demonstrated to the balance of probabilities as the latter criterion was defined. The fact that this is only one conceivable possibility, and that the main purpose of identifying such a possibility was to rule out meat contamination, does not make it less of a finding.

Did CAS "find" the source of contamination? No.
They gave the most plausible route of the three scenario's presented - after they had dismissed the food contamination theory.

Again, this is ignoring the point that "supplement contamination" can be substituted for "meat contamination". If one concedes this, then it's not over.

As I said before, I think an appeal is unlikely. I expect this decision to stand. But everyone in this case--UCI, WADA, Contador's team and CAS--has IMO dropped the ball here. I can imagine ways in which this decision could come back to bite them later, for example, an athlete who tests positive in the future demonstrates that it came from a contaminated supplement that met the ISO standard for contaminant-free. I can imagine the national organization, or CAS if the case got that far, concluding that a reduced sanction of one year was appropriate, and putting forth various arguments as to why that reasoning should not have applied to Contador.

But I can further imagine the athlete's team arguing that there is no legally viable distinction to be drawn between contaminated Euro meat and contaminated Euro supplements. The traditional distinction, which is surely what CAS would appeal to if asked right now, is that meat is inspected by the government, so an athlete deserves protection from testing positive from contaminated meat. Whereas supplements are not, and the athlete takes them at his own risk.

But I am not conceding it - so it is indeed over.

As for substituting meat and supplement contamination - well they are not the same scenario's and WADA have said they will look at each case individually.

But the recent emergence of approved supplements by various antidoping organizations means that similar standards are being applied to them, and this makes it very difficult to argue that an athlete is not deserving of the same protections as provided for meat. The additional traditional argument that everyone has a right to eat safe meat, while supplements are a choice, will also be very hard to maintain. The number of people taking supplements is enormous, it might even approach the number eating meat.

Which Anti-doping agencies have done that??
I know the New Zealand Olympic Committee attempted something like that, but they were quickly rebuked by Howman of WADA:
Supplements programme not 'WADA.Compliant'

 

[Merckx index]

As to your blue highlighted question - as I said already WADA did not have to, however they did because they knew a robust defense was going to be put forward by Contador.

OK, but then your previous response:

They didn't - but CAS were covering the possibility that any appeal would be based on Swiss law, so if they apply it in their conclusions it closes that particular route to appeal.

was irrelevant to the question I was raising. It didn’t address why WADA did this.

Did CAS "find" the source of contamination? No.
They gave the most plausible route of the three scenario's presented - after they had dismissed the food contamination theory.

Again, you are misunderstanding the meaning of "find", conflating it with “beyond a reasonable doubt”. They did find the source of contamination. Because again and again and again, “find” as used in the CAS hearing is not the same as the common vernacular “identify what is almost definitely the source”. One can “find” a source in the sense that it is the most likely among several possibilities. Then, and only then, can one "dismiss" some other possibility.

In fact, even "find" in the sense that you understand it would be a matter of probability, as everything is in science. So your definition of "find" is around 99% certain. But it's perfectly possible to define find in terms of a lower %, which is what CAS did here.

A court of law found O.J. Simpson not guilty of murder. Another court of law, looking at the same evidence, found him guilty of civil charges. Those charges made no sense unless he committed a murder. So one court found him guilty of murder, and one not guilty. Why? Because of a different definition of “find”.

The bottom line: the only way a finding based on balance of probability could possibly be challenged is by disputing the balance itself. Not by demonstrating another scenario beyond a reasonable doubt.

Which Anti-doping agencies have done that??
I know the New Zealand Olympic Committee attempted something like that, but they were quickly rebuked by Howman of WADA:
Supplements programme not 'WADA.Compliant'

This is an interesting link. Thanks for it. Here is a key passage:

"We don't issue compliance reports on supplement programmes. We never have and we never will.
"What we issue compliance reports on is whether signatories to our code are using it in the right way. The signatory from New Zealand is the national anti-doping agency, Drug Free Sport New Zealand. They are Wada-compliant because they run an anti-doping programme consistent with our rules.
"We would not go around describing a nutritional programme as Wada-compliant. That would be quite wrong.

"It's intended to show there is a seal of approval from Wada when we don't even issue those seals. Acceptance or endorsement is just not in Wada's mandate, it's not our jurisdiction and therefore something which is just not done."

As I noted in an earlier post, HFL Sports had to revoke its WADA accreditation in order to test supplements. But it still performs WADA-funded research and uses the same ISO standard that WADA uses. I don’t think the NZ Olympic Committee does. In fact, there is nothing in that article at all that indicates the NZOC tests supplements for contaminants.

But here is the point that even Howman may be missing: To say that WADA doesn't issue a seal of approval for supplements tested by NZVT or HFL Sport Science would be like saying an athlete couldn’t get off if the contamination were shown to be from meat, because WADA also doesn’t issue compliance reports or a seal of approval on the government meat-testing program. An athlete gets off in these circumstances because WADA understands that an athlete has no control over contamination in meat, and again, in exactly the same way an athlete has no control over a supplement that is clean by the same international standards that WADA uses. The issuing of compliance reports has nothing to do with this.

P.S. - In checking out this story, I came across another interesting piece of news. Aussie cricket players may have to submit to hair tests:

http://www.sportsnewsfirst.com.au/articles/2012/02/29/hair-drug-testing-for-top-cricketers/

 

[GJB123]

MI, you are spot on with your legal definition of the word "find" or "finding". That is what the others (the good doc) don't seem to grasp. When CAS "finds that ..." they actually give a ruling or verdict of what they think is meeting the legal burden of proof for that particular case. In this case the balance of probabilities ("more likely than not").

As I stated before I think the ruling doe sgive legal grounds for an appeal, but as you do, I don't think AC will appeal, even though he doesn't stand to lose anything by appealing. The ony reason why he wouldn't appeal is that he might lose the PR-defense in that he can say CAASalso ruled it likely that he unknowingly took CB, but rather has to face the consequences for not taking enough precautions, if I may be allowed to summarize the ruling in that way.

Regards
GJ

 

[patterson_hood]

MI,

Do you have any information on what equipment these different labs use? I'm assuming Cologne is using a triple-quad but can't find the info at the moment. How about HFL etc?

Surely the telling factor is no-one else from the team tested positive. Contador would have to prove no-one else on the same stack as him had samples go through the same lab, which I think would be very difficult to do?

 

[cycladianpirate]

Thank you for your well-measured response MI and you are, without doubt, right in highlighting that portion of the judgment. As with much of the rest of it, it is incredibly sloppily written.

That said, my point with regard to making a finding relates to the matter that CAS was seized with. That is to say, to decide whether or not, on a BOP, Contador had made out his case. They found that he had not.

In short, it was never the court's business to make any sort of finding on how the Clen came to be in Contador's system - the part of the transcript you quote is nothing more, in my opinion, than obiter dicta and would never have been put forward were it nor for the previous ruling that alternative scenarios had to be promulgated and considered.

If CAS erred, then it was not to the prejudice of Contador. Hence, in my view, no ground of appeal.

 

[Merckx index]

Do you have any information on what equipment these different labs use? I'm assuming Cologne is using a triple-quad but can't find the info at the moment. How about HFL etc?

I don’t know. The website just says HPLC-MS. This passage is interesting, though:

The relevant limits of detection for analysis at the manufacturing stage are much smaller than those conventionally addressed by "standard" quality control procedures in the supplements industry.
In general, the necessary levels of detection used in anti-doping screening for athletes are measured at the part per billion level (i.e. nanogram per ml). However, the supplement manufacturing industry would generally use parts per million (i.e. microgram per ml or microgram per gram) for detection of general contaminants for quality control purposes. This means that an athlete's urine or blood test is much more sensitive and is more likely to detect the presence of a prohibited substance than when a supplement is tested during the manufacturing process using conventional methods, with parts per million detection limits.
The levels and limits of analytical detection have profound implications on supplement quality assurance program, demanding testing sensitivities that can only be met by highly specialized analytical laboratories, working to ISO 17025 standards. It is extremely uncommon for the manufacturing facilities used by supplement companies to have the capability to undertake such trace analysis, concentrating instead on the verification of label listings of specified contents. In most cases, supplement manufacturers will test products for other contaminants such as toxic substances, heavy metals, etc. and not necessarily for those substances that may give rise to a positive drug test for a professional athlete, such as nandrolone or ephedrine.

Results are therefore dependable, and will withstand scrutiny in court, in any jurisdiction around the world.

As I discussed before, 100 ng/g is not really close to the possible limits of detection, so there are a lot of detection systems possible. Even the triple quad apparently has several versions, with the latest one, incredibly, able to detect substances at the attogram level. I didn’t even know what an attogram was, it’s one one-thousandth of a femtogram, which I do know is one one thousandth of a picogram. Below the attogram you are approaching the level of individual molecules.

Some of the most sensitive methods of detection, though, involve immunoassays. I have seen one article claiming detection of clenbuterol at 0.1 pg/ml. The problem is that these methods would not be suitable for anti-doping labs, because they can be used for only the one substance of interest, whereas antidoping of course requires the ability to screen for many substances simultaneously. They could be used to check or confirm the presence of a single substance of interest, though. For example, a method like this could have been used (though I doubt it was) for Bert’s blood test, since at that point CB was the only substance they were interested in.

Surely the telling factor is no-one else from the team tested positive. Contador would have to prove no-one else on the same stack as him had samples go through the same lab, which I think would be very difficult to do?

As I mentioned before, studies by Catlin and others have shown that contamination of supplements is extremely variable. Even different tablets in the same bottle can have different levels of some contaminant. So the fact that teammates consuming the same supplement tested clean is not very strong evidence. Personally, I think the likelihood of anyone testing positive for CB from consuming a supplement is very low, because it just isn’t reported in studies. Then again, there haven’t been a lot of studies, and those that exist haven’t used the most sensitive methods.

The one exception was the Hardy case, where Catlin and another scientist whose name I have forgotten (Meyer?), tested supplements. Catlin’s LOD apparently was 10 ng/g (this is the standard he currently lists on his website), but the other scientist I believe used a triple quad system and went much lower. I know they reported very low levels of CB in some supplements, but I haven’t been able to find out how low.

If CAS erred, then it was not to the prejudice of Contador.

I can certainly agree with this. The only break Bert got from CAS was the slightly less than two years, which allows him to ride the Vuelta. And even then it is more than two years from when he gave the samples, so that doesn’t seem so unreasonable to me.

I think Flor said he had until March 6 (?) to appeal. So if there is no news of that in the next few days, I guess we can all move on.

 

[The Hitch]

So hes not appealing then?

 

[LaFlorecita]

So hes not appealing then?

Still 2 days left.

 

[ContaMuse]

Let's hope he will apply I am following these discussions for about a half year and now finally i made an account

 

[ContaMuse]

Appeal I meant