The Court of Arbitration for Sport has decided that Alberto Contador Velasco, 3 time winner of the Tour de France, is guilty of an anti-doping violation, stripped him of a number of results, including the 2010 Tour de France victory, and given him a 2 year ban, back dated to August 2010.
On 21 July 2010, at the 2010 Tour de France, Mr Contador tested positive for a tiny amount of clenbuterol (a prohibited substance under the 2010 WADA Prohibited Substances List, listed as “Other Anabolic Agent”) from a urine test following a rest day after stage 16. Mr Contador believed that he may have eaten contaminated meat, leading to the result.
The process was submitted to the Comite Nacional de Competicion y Disciplina Deportive (CNCDD) of Real Federacion Espanola de Ciclismo (RFEC). In January 2011, the Spanish examining judge of the RFEC considering the anti-doping violation proposed, rejected by Mr Contador, a 1 year ban, (reducing the 2 year ban to 1 year on the basis of no significant fault or negligence). Subsequently, on 14 February 2011, the CNCDD acquitted Mr Contador, concluding:
- It was most probable that the result was due to eating contaminated meat. The low controls on meat production in Spain, plus the very low concentration of clenbuterol in Mr Contador’s body, suggested no voluntary doping. Mr Contador, in eating meat, even exercising maximum prudence, did not know/suspect that he was eating meat contaminated with a prohibited substance. This was not negligent behaviour.
- The extremely small amount of clenbuterol had not enhanced the athlete’s performance.
The UCI and WADA each appealed the RFEC decision to the Court of Arbitration for Sport (CAS). The appeals were consolidated and heard on 21-24 November 2011.
The UCI and WADA, separately, argued as follows:
- UCI met its burden of proof by establishing to “more than comfortable satisfaction” that Mr Contador had committed an anti-doping violation as the A and B samples presented a prohibited substance.
- Mr Contador is responsible for ensuring no prohibited substance enters his body. Mr Contador has the burden of proof to establish how a prohibited substance was in his body, and that he bears no fault or negligence (to avoid any sanction), or that he bears no significant fault or negligence (to reduce the sanction).
- Mr Contador must establish, on the balance of probabilities, that the contaminated meat was the source of the clenbuterol. UCI says he has not met this burden in this instance.
- The evidence, here, was more consistent with the clenbuterol being a result of a blood (doping) transfusion, and/or food supplements. The evidence suggests that the contaminated meat was not the source of the clenbuterol, rather it was more to be a result of doping practices.
Mr Contador argued as follows:
- On the balance of probabilities, the prohibited substance came from contaminated meat. Accordingly, Mr Contador bore no fault or negligence.
- The UCI and WADA theories re blood transfusion, and/or food supplements, should be rejected.
- If CAS disagrees with this view, then Mr Contador’s results following the 14 February 2011 RFED decision should not be set aside.
The CAS Panel advised the parties that it would hear from the many experts in expert’s’ conferences, where all experts dealing with the same issue were present.
The issues to be decided by the CAS Panel were:
- Did Mr Contador establish, to the required standard of proof, how the prohibited substance entered his system?
- If Mr Contador could establish, to the required standard of proof, how the prohibited substance entered his system, does he, in those circumstances, bear no fault or negligence or no significant fault or negligence?
- If required, what sanction should be imposed (how long a suspension? when should that start? which results would be disqualified? …. ).
The Panel concluded that the athlete bears the burden of proof to establish how the prohibited substance entered his system, and that he bears no fault or negligence or no significant fault or negligence, on the balance of probabilities.
In relation to the meat contamination theory, though satisfied that Mr Contador ate meat at the relevant time, and that it was a possibility that the meat was contaminated, the Panel was not prepared to conclude from a mere possibility that the meat was contaminated that an actual contamination had occurred.
In relation to the blood transfusion theory, the panel gave no weight to the “tainted environment”, or “in bad company” argument (ie that athletes in his team had, in the past, been involved in doping). On the basis of the evidence, the Panel concluded that the athlete’s blood parameters could not establish a blood transfusion. The Panel looked at a number of technical parameters, and ultimately concluded that although the blood transfusion theory is a possible explanation for the clenbuterol test result, in light of all the evidence, it was unlikely to have occurred.
The panel concluded, from the material before them, including that Mr Contador took supplements in considerable amounts, that athletes had frequently tested positive because of contaminated supplements, then the food supplement theory was a more likely possibility. Ultimately, however, the Panel did not conclude that this had occurred on the balance of probabilities.
The panel confirmed that, albeit that there were theories before it as to the cause of the clenbuterol test result, the burden of proof to establish how the prohibited substance entered his system, and that he bears no fault or negligence or no significant fault or negligence did not shift from the athlete. Accordingly, it found that Mr Contador has committed an anti-doping violation.
As there was no basis to reduce the usual penalty, Mr Contador was suspended for a period of 2 years.
As to the start date for the suspension, the Panel applied the discretion available where there had been substantial delays in the hearing process not attributable to the athlete, and concluded that Mr Contador’s suspension should be back dated to August 2010 on the following factors in particular:
- the failure by UCI and WADA to put material before RFEC;
- the CAS proceedings lasting over 9 months;
- the CAS proceedings being extended due to the athlete having to answer complex submissions in relation to the blood doping theory;
- the provisional suspension between August 2010 and Mr Contador’s acquittal on 14 February 2011.
The Panel, however, against Mr Contador’s submissions, concluded that Mr Contador’s results from the 2010 Tour de France and after were thereby disqualified