On Monday, after an appeal by the World Anti-Doping Agency (WADA) and the International Cycling Union (UCI), to the Court of Arbitration for Sport (CAS,) Contador was stripped of the 2010 Tour de France title and banned from competing until August.
The three panellists from the Court of Arbitration found that the most likely source of the banned substance clenbuterol was a contaminated supplement that Contador took. However, this is despite the fact that there was no evidence before the tribunal that the source of the clenbuterol was from a supplement.
But Contador never offered that as a reason, he argued against the food supplement contamination and stuck by this story that it was from contaminated meat. Because of this CAS didn’t take the supplement story into account as a mitigating factor - even though they found it was the most likely source.
The contaminated meat story was one agreed upon at a meeting in Spain a month or so before the news of the positive test became public during the 2010 World Road Cycling championships in Geelong. At the meeting were Dr Mario Zorzoli, the UCI’s chief medical officer, Dr Pedro Celaya, Contador’s team doctor, and Contador. By coming up with that defence, they might just have helped Contador cut his own throat.
In the end CAS seem to be saying that he didn't intentionally dope, but that isn't the issue.
From a legal perspective the decision of CAS is another bizarre instalment in their decision making.
How could CAS find the source of the clenbuterol was more likely to be from a food supplement when there was no evidence of this before them other than the precedent in the case of the swimmer Jessica Hardy?
The case brings into focus the severity of the strict liability provisions of the WADA code – this case was never about Contador’s innocence, but whether or not he could provide an explanation which might mitigate his penalty. With all the money and prestige at stake in these cases I would not be surprised if we see some governments pressure WADA to change the strict liability principle.
For the UCI, they have got the result they dreaded from the start, the best and highest profile cyclist of the moment under a cloud and banned.
This and the Valverde case show where the real tension is in anti-doping – between the laws and rights granted to citizens by their country and their constitutions and the global system of sporting law which floats above it.
Interestingly, the decision to appeal against the Spanish national body’s decision was taken by the World Anti-Doping Agency, with the UCI only an apparently reluctant seconder.
Initially the UCI wanted it to go away. Because of WADA’s involvement, it went to the Court of Arbitration, where Contador continued his argument based upon contaminated meat.
The positive test meant he was guilty - there’s no getting around that under the anti-doping rules in sport. The issue then for CAS came down to what arguments Contador could have offered in mitigation to get a reduced penalty.
The CAS seems to be saying in its ruling, that if he had offered the mitigation that the clenbuterol was contained in a contaminated supplement, they would have accepted that.
Contador, though, stuck by this story of the contaminated meat. However, the bizarre nature of the CAS finding might give Contador a real leg to stand on as the victim in this case - banned for two years on thre basis of a CAS finding that the source of the clenbuterol was not intentional doping.
Overall though the whole episode has thrown another cloud over the manner in which cycling is administered. And for Contador, he can feel assured that CAS found that he didn't intentionally dope, whilst he sits out his ban and sees his victories annuled from the record.
School of Law