Klaas Faber 0

The case of Alberto Contador should be reopened in a civil court of law in Spain

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Alberto Contador 


A normal person will say that the unthinkable has happened. Alberto Contador has been found not guilty of doping abuse by the Court of Arbitration for Sport (CAS), but nevertheless receives the maximum sanction for a first offense: a suspension of two years.


One should realize, however, that this verdict is not the result of a normal thinking process. No, the CAS has blindly followed a rigid set of rules issued by the World Anti-Doping Agency (WADA). Essentially, one observes WADA having taken the seat of the judge. The judge can only execute the rules and the rules dictate that an athlete needs to prove his/her innocence after delivering a positive test.


But what if the test is not conclusive of doping abuse, as one clearly observes in this case?


How can a Court ignore that basic problem and punish, as if it operates on the automatic pilot?


No defense possible


It is important to note the discrepancy with common law. Common law requires the prosecution to deliver a proof against which the alleged offender can build a defense.


But how should Contador have defended himself when the CAS itself does not even know how the clenbuterol entered Contador's body?


The CAS concluded a contaminated supplement to be the most likely cause, something Contador expressly stated not to have taken over the relevant period. The real cause therefore remains a mystery. The proof is perhaps consumed, perhaps it is not. There's no way of telling what caused the positive test.


Rules more important than people, two other deplorable cases


The current case does not stand on its own, to the contrary. This case is just another example of a shameful practice where rules are more important than people. I will limit myself to two examples that have received little attention in the media. Could it be because it is bad propaganda?


The first example is a 13-year-old swimmer in Germany who was 'caught' with clenbuterol that originated from a legal cough syrup. A suspension of one year followed. That case further illustrates that the authorities are dishonest about the substance itself. Clearly, whether a substance is harmful or not, depends on the amount. Who will disagree with the claim that the amount found in Contador's sample was not effective in any respect?


The second example is a 12-year-old karter from Poland who received a suspension of 18 months for possibly eating the wrong energy bar. I need to stress 'possibly' because the origin of the substance remained unknown.


Igor Walilko


What did these boys do wrong? What was the prohibited act?


Anti-doping has become a fishing expedition, serious reform is indicated


All these cases have one thing in common, namely that the accusation resulted from a fishing expedition. Sure, cycling is known for serious doping problems in the past. However, there was no suspicion against the two boys to begin with. The authorities just applied a battery of tests and found 'something'. Did these boys cheat on anyone? No, they did not. When authorities start treating minors as criminals, some serious reform is indicated.


WADA's view on doping: simple or simplistic?


To illustrate WADA's view on doping, I quote its President John Fahey:


"The simple fact is that anyone who has a prohibited substance in their system is a cheat. It is as simple as that. The only argument then comes as to what was the nature of how that prohibited substance got into the athlete's system. But you're a cheat , effectively, the moment you've got that substance in there."


Fahey ignores the fact that Contador has been acquitted from doping abuse. That should count for something in the free world. What would Fahey say about the two minors?


Appeal to a civil court of law


Alberto Contador can seek justice by filing an appeal in a civil court in his home country, i.e. Spain.


It is important to note that the CAS is not honest about possibilities to appeal against its decisions:


"Judicial recourse to the Swiss Federal Tribunal is allowed on a very limited number of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy."


I consider this to be a notable example of public disinformation.


To substantiate the claim that Contador can benefit from the reopening of his case by filing an appeal in a civil court, I refer to a recent acquittal of doping charges due to a contaminated supplement. The civil court of Arnhem, The Netherlands, rightly concluded that the talented handball player Marijn Sinkeldam could not be held responsible for testing positive due to a contaminated supplement (verdict dated February 15, 2012).


A landmark decision long overdue.


Klaas Faber Independent expert in doping issues Chemometry Consultancy http://www.chemometry.com/Profile.html Klaas Faber obtained his Ph.D. in chemometrics from the Radboud University (Nijmegen, NL). Between 1994 and 1996, he worked as a post-doc with Bruce Kowalski at the University of Washington (Seattle, USA), and Dave Duewer at the National Institute of Standards and Technology (Gaithersburg, USA). Between 1996 and 2002, he worked as a statistician at the Netherlands Forensic Institute (Rijswijk, NL) and the Agrotechnology & Food Sciences Group (Wageningen, NL). From 2002 onwards, he has led a consultancy company in chemometrics. He maintains active collaborations with academic research groups and has published about 100 scientific papers.


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