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Spanish cyclist Alberto Contador might have just “cut his own throat” by using the contaminated meat defence to his positive drug test, according to Deakin University researcher, Martin Hardie.
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.
“That defence was one concocted 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,” Hardie said.
“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.
“If you read the judgment, the three panellists from the Court of Arbitration basically said they would have accepted an argument for mitigation that the clenbuterol was contained in a contaminated supplement. 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, rather he stuck by this story that he and the other people at this meeting had come up with that it was from contaminated meat. Because of this CAS couldn’t take the supplement story into account as a mitigating factor.”
Hardie, who organised the New Pathways for Professional Cycling conference hosted by Deakin in 2010, says there are no winners out of the Contador case.
“From a legal perspective the decision of CAS is another bizarre instalment in their decision making,” he said.
“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 also 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.
“Certainly the sport remains tainted, even though in this case the amount of the banned substance was so small.
“That was probably one of the reason’s the UCI initially took it so lightly, and while Contador was cleared by his national body in Spain.
“Also, in Spain, since the end of Fascism, there is a real focus on justice.
“After years of people disappearing without trial and without trace the Spanish support the notion of citizens having substantive legal rights.
“That is why the Spanish judge who is their equivalent of the Chief Justice of the High Court here in Australia came out at the time of the original Spanish decision clearing Contador saying that to find him guilty would be contrary to the normal sense of justice.”
In contrast to this is the absolute nature of cycling’s rules in relation to positive drug tests, no matter how small the amount.
“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,” Hardie said.
Interestingly, the decision to appeal against the Spanish national body’s decision was taken by the World Anti-Doping Agency, with the UCI a reluctant seconder only.
“Initially the UCI wanted it to go away,” Hardie said.
“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.
“It then came down to what 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.”
It is also interesting that while criticising the decision of the CAS, and the time it took to reach it, former champion Eddie Mercx said that he felt that Contador’s defence had been badly handled.
Hardie said the length of time taken to deal with the matter wasn’t necessarily a major issue.
“They say that justice delayed is justice denied, but by normal standards involved in court cases, this wasn’t a long time at all,” he said.
“The real dangers to justice here are the constant calls for speed which mean that too often judgments are rushed to in the media and before all the evidence has been obtained and sporting politics is dressed up as law.
“Overall though the whole episode has thrown another cloud over the manner in which cycling is administered.”