On the day the CAS handed down its decision on the Contador case Cadel Evans was quoted in the cycling press repeating two of the institutional mantras of professional cycling. The first being that often claimed by the UCI and by others such as Lance Armstrong that the sport is at the forefront in the battle against drugs: “Cycling has done more than enough to show it’s doing the right things when it comes to the fight against drugs … Now it’s time for other sports to look to cycling and replicate what we do so the fight against drugs in sports can maybe be beaten one day across all sports.”
Evans was reported as saying that he had followed the Contador case from afar and trusted the authorities to do their job: “I don’t know all that goes on behind there and what all the real facts are and so on … I go along and do my job and that’s up for the authorities to decide”.
The other received wisdom about the Contador case which Evans repeated related to the claim that the Contador case took too long and in effect as others have said, thus created uncertainty for the sport: “It was a case that dragged on for so long I had no idea what was going on and what was going to happen. … I just read the newspapers like the rest of us.” This received wisdom that the case was a drawn out affair has even been repeated by academics in their commentary on the case.
As I have considered when discussing Operacion Puerto (see Hardie 2011), the rhetoric of need for speed in deciding doping cases was deeply embedded in the manner in which that case was played out in the sporting media spectacle – tardy Spanish justice was too slow and stood in the way of the certainty required for the sport and its sponsors; in such a situation the sovereign justice system of Spain had to be avoided and alternative methods of new law had to take their place. Alejandro Valverde’s case where the Italian Olympic Committee (CONI) could adjudge a Spanish citizen for offences that allegedly occurred on Spanish territory despite rulings of a superior Spanish Court and on the basis of a matrix of circumstantial evidence not entirely related to the issue at hand is the prime example of this.
The legal scholar Wiiliam E. Scheuerman has written extensively on the danger of this need for legal speed, which he says jeopardizes freedom and undermines the rule of law. He argues that the motorisation of the law, it increasing use of technical and scientific standards undermines traditional legal reasoning: “law making procedures become ever faster and more circumscribed, the path towards the achievement of legal regulation shorter, and the share of jurisprudence smaller” (2009:105).
In the world of anti-doping and professional cycling this requirement for speed manifests itself in an avoidance of the tardy processes of national law courts and a preference for arbitration, it promotes a situation where of presumed guilt and judgment through the media is the norm rather than traditional methods of legal determination. Furthermore the principle of strict liability means that the only recourse available is of a formal procedural type.
Putting aside all the other issues at play in Contador’s case – and I am not entering into the question of whether he is guilty or not; was it really the drawn out affair that the received wisdom says it was – did it really take that long?
The Contador case from the point at which it became public in late September 2010 until the decision of CAS spans a period of sixteen months. This period includes the opening of the case, the hearing and decision by the Spanish cycling federation, and the preparation and hearing of the appeal in CAS, along with the time it took the three arbitrators to write their 98 page and 514 paragraphed decision. Given the complexity of the case, the evidence adduced and the maze of scientific and legal issues at stake is it really fair or accurate to describe this as a drawn out affair.
What has been at stake in the Contador case is not only Contador’s reputation as a doper or not (remember there is considerable ambiguity in the CAS decision as to whether Contador intentionally doped), but his name on the record books of the 2010 Tour de France and the 2011 Giro d’Italia. Along with this the UCI is seeking fines under its rules from Contador which amount to €2,485,000, the CAS has yet to decide upon this aspect of the case. Bloomberg News has put the potential financial cost of the case to Contador as being in the vicinity of US$6 million based upon an assessment of the fine and legal costs. But this figure does not seem to take into account the ramifications for Contador’s earnings this year nor his potential loss of sponsorship.
Would we really state that an investigation, court hearing and appeal process was tardy and drawn out if what was at stake was a wealthy entrepreneur who had their reputation trashed, was exposed to being banned from performing their business and exposed to a $3,000,000 fine amongst other significant financial losses?
And would we accept the decision of the Court as being just when in the end their decision leaves considerable doubt as to their reasoning based upon the evidence and as to whether Contador intentionally doped?
Given what was at issue for him I am not sure we would. If we judge it by traditional legal standards and the length of most court cases in our legal system, the Contador’s case was definitely not drawn out.
Hardie, M., It’s not about the blood: Operacíon Puerto and the end of modernity, In McNamee, M. And Møller, V (eds) (2011) Doping and Anti-Doping Policy in Sport: Ethical and Legal Perspectives, Abingdon: Routledge.
Scheuerman, W.E., & Rosa, H., (2009) High-Speed Society, Social Acceleration, Power, and modernity, The Pennsylvania State University Press.