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Contador and the law

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Alberto Contador and doping are words casting a long shadow over the 2011 Tour de France. Even before the Grand Tour has begun. From a recent poll on the Going Going Bike Facebook page fans clearly think the Spanish Cycling Federation is the villain of the piece.

A lot of misinformation has been spread around the Contador case. Few people really understand what it going on. As a result we went to the rule books to find exactly what rules apply and whether they have been applied logically.

Who created the Anti-Doping Legislation?

The World Anti Doping Code (the “Code”) came into force on 1 January 2004 and was revised on 1 January 2009. The Code is implemented by sports organisations from around the world and all other signatories to the Code.

The Code contains certain mandatory articles and other principles which signatories must ensure their own rules comply with.

Where is the Anti-Doping Legislation for cycling?

The UCI is a signatory to the Code and has implemented it at Part XIV of the UCI Rules (Rules). It is this body of rules which governs the Contador case.

Prohibited List of Substances

Part XIV of the Rules consists of over 300 Articles.  You are forgiven for not having read all the Articles. However, you may be aware that it incorporates (pursuant to Article 29) a Prohibited List of substances. You’ll also probably know that Clenbuterol is on that list.

The rules state that if an analysis of an A test finds evidence of a Prohibited Substance (and no acceptable medical reason is given) then the rider should be provisionally suspended pending a hearing.  A provisional suspension is distinct from a ban as it is intended to remove a rider from competition temporarily pending a hearing.

Certain Prohibited Substances need to be found in sufficient quantity for a provisional sentence to be applied. There is no such quantitative threshold applicable in the Rules to Clenbuterol.

Provisional Suspension

As a result of Contador’s positive A test for Clenbuterol on 21 July 2010 he was given a provisional suspension on 30 September 2010.

You may recall discussions over the low quantities of Clenbuterol in Contador’s blood: “40 times less than the minimum for a lab to detect” according to his lawyer. However, this was raised in respect of another significant point of law and is irrelevant for the purposes of establishing whether Contador had a Prohibited Substance in his body.

Hearing by National Federation

Once a rider is given a provisional suspension the UCI requests that the rider’s national federation open investigations and instigates disciplinary proceedings.

The national federation is obliged to apply the Rules to their hearings. Accordingly, it is at this stage that the full body of the Rules come into play. It was at this moment (in November 2010) that the Spanish Cycling Federation began their active involvement in the Contador case.

Personal duty

Out of all the Rules the one stated at Article 21.1.1 has become most familiar amongst followers of the Contador case. However, as Contador’s lawyers have been at pains to point out, it should be construed within the entire body of Rules rather than in isolation.

This Rule states that it is the “personal duty” of a rider to ensure that no prohibited substance enters their body. Intent, fault, negligence or knowing use need not be demonstrated to establish an anti-doping violation.

The concept of a personal duty in Article 21.1.1 is deliberately onerous. A rider cannot hide behind his team and their catering or medical staff. The obligation, set out in this Article, is for a rider to personally make certain that they never allow a prohibited substance to enter their body.  You probably need to speak to a pro rider to fully understand how much hassle this is, but it seems like a tough thing to comply with.

Burden and standard of proof

The burden of proof is placed on the national federations to demonstrate such a duty is broken. The Rules state it is necessary to establish to the “comfortable satisfaction” of the hearing panel that the duty was broken.

The concept of “comfortable satisfaction” is not a familiar one within English law. However, it is noted in the Rules to be greater than a mere balance of probabilities but less onerous than beyond reasonable doubt.

We have not received a copy of the decision of the hearing panel of Spanish Federation but it seems likely that they were adequately satisfied that an anti-doping violation had taken place.

An anti-doping violation without a ban

The duty set out in Article 21.1.1 must be read alongside Article 296. This Article falls under the heading “Elimination or Reduction of ineligibility based on Exceptional Circumstances”.

Article 296 states that where a Rider establishes that he has committed no fault or negligence, the otherwise instated period of ineligibility shall be eliminated. This means that when a rider can demonstrate he is not guilty of fault or negligence, although he has still have committed an anti-doping rule violation, he should not be punished.

Contador relied upon Article 296 and the specific facts that surrounded how Clenbuterol got into his body to have his provisional suspension overturned and no further ban imposed.

As is widely reported he relied upon the fact that the steak he ate contained Clenbuterol. He also convinced the panel that it was not his fault that he consumed this contaminated steak. These were the “exceptional circumstances” that resulted in Contador’s ineligibility being eliminated.

Still confused how Articles 296 and 21.1.1 can be read together?  Essentially, Contador was guilty of an anti-doping violation but avoided a ban because it was not his fault. It seems that in this case Contador’s lawyer managed to convince the Spanish authorities that Article 297 should take precedent over the duty imposed in Article 21.1.

Miniscule quantities of Clenbuterol

Contador was found to have 50 picograms (or 0.000,000,000,05 grams per ml). These small quantities have been given large amounts of coverage.

Why? Partly because the defence team suggested they show Contador was not deliberately taking this substance. However, more importantly because of the content of Article 290.

This states that if a Rider commits an anti-doping violation and demonstrates they bear no fault or negligence then his results in competitions will not be disqualified except to the extent they were shown to have been affected by the Rider’s anti-doping violation.

Contador clearly wants to avoid the situation where he does not receive a ban but is disqualified from last year’s Tour de France by arguing that the quantities in his blood were too small to have any effect on his performance.

Summary of current position?

Contador and his legal team: Contador has not committed a doping violation and should not be banned or disqualified from any events.

Spanish Federation: Contador did commit a doping violation but no ban or disqualification due to Contador not being negligent or at fault for this violation.

UCI (and rest of world!): Contador did commit a doping violation. He should be banned and should be disqualified for all events since Tour de France 2010.

Where next?

Following a decision by a national federation, according to Article 278, no further appeal can be made to a national body. However, the UCI are permitted to ask the Court of Arbitration for Sport to pronounce nullity in an appeal against the decision.

The UCI have appealed to CAS and, following a request from Contador, the hearing has been delayed to a date yet to be confirmed.

Although no documents have been made available it seems likely that the UCI will build their case around the application of Article 296 by the Spanish Federation.

The steaks could not be higher

If the UCI are successful Contador would most likely be subject to a ban and be stripped of all titles he has won since last July.

If the UCI are not able to show fault or negligence then Contador will probably continue to dominate pro-cycling for the foreseeable future. Although he may think twice before ordering steak.

See also

Wearing a short skirt whilst cycling deemed a distraction

Great Road Climbs of London: Richmond Park

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