Contador: guilty or not, justice has not been done

Following the detection of banned drug Clenbuterol in a sample he provided on the 21st of July in 2010, a rest day during the Tour de France, Alberto Contador was handed a (backdated) two-year suspension and all his results during that period - including a Tour de France and a Giro d'Italia, cycling's most prestigious races - will be disqualified.

The world of cycling has been split for nearly two years into those who believe the Spanish rider is innocent of deliberate doping and those who believe he is guilty - yet even the second group are shocked at the apparent severity of this punishment. Many cyclists, some retired and some still active, have leaped to his defence; saying that the penalty is too great and claiming that others, some of them riders whose guilt is in no doubt, have been let off more lightly. So has he been treated unfairly? Should he appeal and, if he does, should his sentence be reduced?

To decide, we first need to know exactly what it is he has been found guilty of doing: what was found in the positive sample, how it was found and how it may have got there. Then it becomes possible to compare his case to those of riders who have been in similar situations and thus decide if his punishment is fair or if he has been singled out for special treatment.

Clenbuterol
Clenbuterol is the generic clinical name for (RS)-1-(4-amino-3,5-dichlorophenyl)-2-(tert-butylamino)ethanol, a sympathomimetic drug - i.e., one that mimics the actions of transmitter chemicals (in this case, epinephrine) within the nervous system. It's used in medicine as a decongestant and bronchodilator, sharing many similarities to Salbutamol but is more potent and its effects last longer; hence its use in some nations to treat chronic asthma.

As is the case with almost all drugs, Clenbuterol can produce a number of undesirable and even dangerous side-effects. These may include, but are not limited to, the following: thyrotoxicosis (over-production of thyroxine and triiodothyronine in the thyroid gland, stenosis (narrowing of the blood vessels), heart attacks, tachycardia (abnormally high heart rate), hypertension (high blood pressure) and hypersensitivity. It also increases aerobic capacity, raising the blood's ability to carry oxygen to the muscles; this being the effect that athletes who illegally use it to improve their performance seek.

Clenbuterol is sometimes used - against medical advice - as a dietary aid as it increases the body's muscle to fat ratio. Currently, vets use a trademarked version named Ventipulmin to relieve respiratory difficulties in horses, but for the same reasons it appeals to dieters it is used by farmers wishing to produce higher-value, leaner meat. In the USA and European Union, where it can be used legally by vets to relax the uterus of birthing cattle (in the USA, provided meat from the animal will not enter the human food chain), it's believed with evidence that illegal use by farmers is extremely rare - a test conducted by the EU in 2008 and 2009 could find only one example of meat contaminated by Clenbuterol among 83,203 samples; but in some nations such as China and Mexico, it's thought to be comparatively common.

How was Contador tested?
All professional cyclists can expect to receive random visits from WADA-approved anti-doping officials throughout the year. They can appear at any time and refusal to provide a sample is considered indication of guilt, as is failure to keep their national federation up to date with their whereabouts. In addition to this, teams now operate their own internal anti-doping test programs which have been opened up to independent inspection in recent years to allay accusations that they are merely paying lip service to the problem - riders who have tried to escape team tests have been sacked in the past. All riders taking part in the Tour de France will be subjected to a test before Stage 1, as will the winner, second place and two riders at random following each stage. Since the Tour lasts for 21 days, this means that all riders are likely to be tested at least twice during the race. Contador won no stages in 2010, but was second on Stages 12 and 17 - and would hence have been tested at least four times: before Stage 1, after Stages 12 and 17 and on the rest day when he provided the sample that tested positive. As race leader in the final six stages, he may have been tested more.

The drug can be detected in a sample of urine via a process termed GC-MS, gas chromatography and mass spectrometry, and is considered sufficiently reliable to have become the standard laboratory test when an unknown substance needs to be accurately identified. In gas chromatography, the sample is carried within an non-reactive or inert gas, commonly nitrogen or helium, which allows it to be fed through a tube coated with compounds termed stationary phases. The varying retention times of each stationary phase (the time taken for the compound to "take hold" of molecules from the sample) permits the sample to be "picked apart" into separate molecules, each representative of one of the chemicals within the sample.

The GC-MS process has been made far easier by improvements in the machines
used to carry out the procedure
(image credit: Polimerek CC BY-SA 3.0)

Those chemicals can then be identified using the mass spectrometry process. The molecules from the sample are converted into ions using an ion source (usually by hitting them with an electron beam) and then sorted according to their mass-to-charge ratio using an electromagnet. This allows the tester to build up an accurate model of the tested molecule, thus allowing the sample to be identified. The GC-MS process was perfected some time ago, but in recent years the equipment used in order to carry it out has been greatly improved and it is now judged to be almost 100% reliable. As the drug is metabolised very slowly within the body, a positive sample cannot be used to ascertain when the substance was ingested.

It has been claimed that at the time Clenbuterol was detected in Contador's sample, there were only four laboratories in the world with the ability to detect in in such minute quantities - this has been declared false by independent scientists.

How much was found?
When news that Contador had tested positive was first made public, it was reported that the amount of Clenbuterol discovered in the sample was 50pg/ml of sample - 0.00000000005grams per millimetre; some 400 times lower than a laboratory is expected to be able to detect in order to receive WADA approval.

This, the probable cause of the "only four laboratories" rumour described above, was subsequently found to be incorrect; the actual amount being 40 times lower than a WADA laboratory must be able to detect - however, according to Dr. Douwe de Boer (recruited by Contador and his lawyers to act as scientific advisor during the case), this would need to be increased 180 times before any effect of athletic performance became noticeable. Secondly, no trace of the drug had been found in samples provided on the 19th or 20th of July, nor at any other point during his career: thus, it seems very unlikely that he was micro dosing - a technique that, in view of Clenbuterol's slow metabolisation rate, would be useless anyway.

How could it have got there?
Contador continues to insist that he has never deliberately doped. Therefore, if we assume he isn't lying, we need to decide other ways in which Clenbuterol may have got into his body. The first and most obvious candidate is the consumption of contaminated meat, the explanation given by the rider himself. This is far from unknown: in September of 2006, 330 people in Shanghai suffered health problems after eating pork from pigs that had been treated with the drug. 60 people in the Chinese province Guangdong ingested it in the same way  in February 2009. In 2011, several players in the Mexican national soccer team and 109 players in the Under-17 FIFA World Cup - held that year in Mexico - provided samples that tested positive for Clenbuterol. All the players claimed that contaminated meat was to blame and, as it is known that the drug is used by Mexican farmers, WADA accepted their claims and they escaped sanctions.

As we have already seen, the EU could find only one positive sample among 83,203 samples of European-produced meat and, over the same time period, 19,431 samples of Spanish meat turned up not a single positive result.

However, the Spanish public have developed a taste for beef over the last few years and the amount consumed within the country has soared. Meanwhile, Spanish production of beef has fallen - from 670,408 tonnes in 2006 to 575,000 tonnes four years later. Where's it coming from?

Most of Spain's beef imports originate in the Netherlands, a nation which is far more strict when it comes to which drugs can be administered to animals that it is on which drugs people can administer to themselves. Ireland provides the next largest EU share, but since the same laws apply there the Emerald Isle isn't likely to be the source of dodgy steaks either. Most of the remainder comes from Uruguay, Brazil and Argentina, and in the last couple of years the former Eastern Bloc nations of Poland and Romania have begun supplying live cattle for slaughter in Spain. Contador claims to believe that he ingested the drug by eating contaminated beef bought at a shop attached to a slaughterhouse in Irun, a town in the Basque Country, subsequently visited by a WADA team who could find no evidence of contaminated meat at the facility. However, Jacinto Vidarte, acting as spokesman for the rider's legal team, says that it is impossible to prove for certain that the meat was not contaminated. After all, the Irun meat is only the meat that Contador says he believes is to blame; if he genuinely did not deliberately use Clenbuterol, which as we have seen is metabolised very slowly, it may also have come from meat bought elsewhere. The Court declared that "...on the basis of all the evidence adduced, the Panel considers it highly likely that the meat came from a calf reared in Spain and very likely that the relevant piece of meat came from the farming company Hermanos Carabia Munoz SL" (paragraph 328).  Very likely is not the same as definitely. In these days when much of what we eat has been transported halfway around the world before finding its way into our kitchens, can we truly be certain that he did not unwittingly ingest the drug in this way?

How else might it have got into his body? The CAS, via a press release after their verdict, said: "The panel found that there were no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities." Note that they also cannot prove it definitely didn't. They go on: "In the panel's opinion, on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement." Once again, there is no proof that Contador willingly ingested the drug and a rather large chance that he may have done so accidentally and without his knowledge - this would not be the first time an athlete has failed an anti-doping test without consciously doping: it happened to Scott Moninger, who was suspended for one year after testing positive for 19-norandrosterone, indication of anabolic steroid use but later shown to have come from a contaminated food supplement he'd bought in a shop in Colorado. Christopher Brandt tested positive for methadone, which was later found to have originated from a presumably rather incompetent chemist who had been preparing a methadone prescription before he prepared Brandt's prescription for an entirely different drug that he was permitted to use. Formula 1 driver Fernando Alonso was so concerned about the likelihood of consuming contaminated food whilst in China in 2011 that when away from the Ferrari team's mobile kitchen - serving food brought with them - he would eat only plain rice after personally supervising the cooking to ensure it had been boiled in bottled mineral water, otherwise surviving on energy bars.

The third likely scenario is that he received a transfusion of blood that was contaminated with the drug. Since blood transfusions can be used by athletes to boost their body's ability to supply the muscles with blood, transfusions are strictly forbidden unless carried out for genuine medical reasons. More on this explanation in the next section.

Contador's doping record

Like all professional cyclists, Contador has been subject to regular anti-doping tests throughout his career - and as perhaps the most talented stage cyclist of his generation and a three-time Tour de France winner, he comes under especial scrutiny. It's no surprise then that, in a sport which has done more than any other in an attempt to prevent the issue that twice nearly killed it and has accounted for several of its most shining stars, he has been linked to doping in the past.

In 2006 he and five other members of Astana-Würth were prevented from taking part in the Tour de France after they were connected to Operación Puerto. He and four of the other men were subsequently cleared of wrong-doing and the rider swore under oath that he neither knew nor had links to Dr. Eufemiano Fuentes, about whom the investigation was centred - yet Le Monde reported that he had refused to undergo a DNA test which would have proved whether or not any of the preserved blood found at the doctor's laboratory was his. Three years later, in a column in the same newspaper, Greg Lemond claimed that to climb Verbier as quickly as Contador had done in that year's Tour would be impossible "without falling back to the use of performance enhancing products." Several experts later refuted claims made by Lemond and his advisor, Professor Antoine Vayer, saying that while Contador would undoubtedly require an unusually high VO2 level it would not be "so high that you can definitively state that it can only be achieved via doping."

The day before he provided the sample that tested positive for Clenbuterol, Contador underwent another test - which turned up plastic residue in his urine. In the past, the presence of plastic residue has been shown to be indication of blood doping, the plastic having come from the plasticisers added to blood harvested from an individual before its stored ready for future re-transfusion into the body. The test that discovered the residue was not approved by WADA, meaning that the results were not admissible as legal evidence - and as such, Contador has never had to explain them, nor done so. The CAS decided that this scenario was unlikely (paragraph 454).

That leaves the contaminated food supplement theory, as proposed by WADA: an explanation that will be all too familiar to Amber Neben, another professional cyclist who, in 2003, tested positive for 19-Norandrosterone (a metabolite of the anabolic steroid Nandralone, which promotes the production of red blood cells and in turn boosts the body's ability to transfer oxygen to the muscles, as does Clenbuterol) at the Road World Cup. She was banned pending investigation immediately after the test, but the CAS subsequently ruled that whereas doping had occurred, there was no evidence that it had been done deliberately and accepted the rider's explanation that a contaminated food supplement was to blame; then handed her a six-month ban backdated to the time of the test and agreed that she would subject to increased tests for the following eighteen months. Contador, meanwhile, rejects this theory; saying that he only used food supplements supplied to him by the Astana team, for whom they were selected by the team's assistant coach and chief masseur (paragraph 461). CAS maintains that it is the most likely explanation, but notes that it cannot be proved that the rider's assertion to have only used Astana's supplements (paragraph 462).

The UCI and WADA's case

(image credit: kei-ai CC BY 2.0)

The legal concept of onus probandi, burden of proof, states that an individual or party that has provided satisfactory evidence that another individual or party then becomes subject to the benefit of assumption. Since all defendants are automatically assumed innocent unless proven otherwise, the the prosecution must show beyond doubt that their accusation is founded and, if they can do so, the defence then bears the burden of proof and must demonstrate reliable evidence to support their claim that the accusation is false.

In this case, Contador automatically carried the burden of proof since there is no reasonable doubt - in view of accuracy of the GC-MS testing process - that Clenbuterol was present in his body. Nor is there any evidence to suggest that the laboratory which carried out the test mixed up his sample with one from another athlete - his defence team have not introduced such a scenario as a possibility though they will undoubtedly have looked into it; leading us to the conclusion that they consider it extremely unlikely. Many people are in no doubt whatsoever that the rider is guilty of deliberately taking Clenbuterol (the hundreds of thousands of Tweets over the last 24 hours referring to him as Dirty Bertie are proof of that), but as the case stands the UCI and WADA have not been able to prove this. If we assume that he did not and was not willing to falsely confess, his only remaining option was to attempt to describe other possible ways in which the drug might have got into his body in order to raise sufficient doubt for a favourable verdict. Unfortunately, the ideal - submitting a sample of the beef he says he ate for analysis - was not available, because by the time he'd tested positive he'd already eaten it and it was already back in the food chain: it is referred to as "the missing link" in paragraph 329 of the court transcript. All he could do was describe events as best as he could and throw himself upon the mercy of the court.

Conclusion
In the court transcript, paragraph 336 states: "..it is alleged that Mr Contador undertook a transfusion of red blood cells on 20 July 2010 and then – in order to preserve a natural blood profile and mask the use of such transfusion, which can be detected through the Athlete’s Biological Passport (hereinafter; the "ABP") - the next day (21 July 2010) injected plasma (to hide the variation of haemoglobin values) and erythropoiesis stimulation (to hide the variation of reticulocytes) into his system. According to the Appellants, it is the transfusion of plasma of 21 July 2010 which could have contaminated the Sample with clenbuterol, resulting in the adverse analytical finding." The Court then decided this was unlikely to be the reason for the failed test (paragraph 454). That Clenbuterol, a drug banned under international athletic rules, was found in a sample provided by Alberto Contador at the 2010 Tour de France is in no doubt whatsoever. Contador has not tried to claim that he did not provide the sample, nor that persons unknown tampered with it - but, due to the complexities of the case,  he cannot prove for certain that he did not deliberately ingest the drug. Neither can the UCI or WADA prove that he did.

 Last year, I was accused of stealing "a significant sum of cash" from my then employer. I didn't, but my case had broad similarities to that of Contador: CCTV evidence proved that the money was in my possession at the time when it was stolen, something I had never denied - one of my duties, as a manager, was to bank the daily takings and I had placed the money in a bag belonging to myself ready to be taken to the bank. There was a period of approximately one hour after I did so during which it seems the money was stolen by persons unknown. Two days later, I was suspended from the job, then dismissed after another few days. After a six month investigation, I appeared in a Crown Court with a very high likelihood that I would be going to prison for twelve months. However, during the hearing, my excellent barrister was able to extract admissions from my employer that it had viewed only CCTV footage of me placing the money into my bag and had not bothered to check footage from the time between then and the time I took the bag to the bank. The police had also not thought to ask for that footage which, after one month, was destroyed when the video tape was reused. Whilst that might seem to be in my favour, it was not - because I needed it to prove that someone else had committed the theft and thus the burden of proof fell upon me. Like Contador, I needed to convince the Court that while a crime had been committed (theft in my case, the illegal contamination of meat in his), I was not the person who committed it. Thankfully, I have never committed a crime and have no criminal record; it was this "good character" which saved me - while I couldn't prove I hadn't stolen the money, it also couldn't be proved that I had and so the Jury found in my favour and I was unanimously cleared of the charge. Contador doesn't have that on his side. His name has been linked to doping in the past, the most damning link being the plastic residue - something he should have dealt with at the time by seeking an explanation, assuming he was not blood doping, even though the evidence found by that test could not be used alone to prosecute him. He was unable to relieve himself of the burden of proof and the Court, swung by his previous record, was not inclined to give him the benefit of the doubt.

We cannot be certain that Contador either deliberately took a performance-enhancing drug or that he injected it into his body by way of an (illegal) blood transfusion. We also can't be certain that, as Contador claims, he did not. Hence, the case was decided not on proof, but on a legal technicality used to decide an outcome when proof is not available. Finally, there seems to be a very really likelihood that he unknowing ingested it in a contaminated food supplement; as we've seen, this happens - and the Court recognises that fact (paragraphs 457-460). If this scenario - favoured by the Court, remember - is the real reason for the drug found in his sample, he's no more to blame than he would be if he ate contaminated meat because food supplements are no more illegal (though adding Clenbuterol to them is, in many nations) than eating beef is. So why was Amber Neben suspended for six months and Alberto Contador for two years? Does the UCI have an axe to grind after he escaped charge when the plastic residue was discovered? Could it be that they and WADA want to use his enormous celebrity as winner of six Grand Tours (three editions of the Tour de France, two of the Giro d'Italia and one Vuelta a Espana) to make an example of him, leaving nobody in any doubt that both organisations are serious about ending doping? It is possible that he's a liar, a doper who thought he was clever enough to get away with cheating in a sport he professes to love - but there also appears to be a reasonable possibility that an innocent man who truly does love his sport is being unfairly punished as a result of circumstance. Four things are certain:

  1. Contador's punishment, as the case now stands, is unfair.
  2. We don't know what happened.
  3. We cannot be certain that justice has been done.
  4. If, as he well might, Contador decides to appeal, this chapter in the history of cycling is far from over.