WADA lawyers considered walking out of Contador CAS hearing after key testimony excluded
Michael Ashenden barred from giving evidence on plasticizers as questions arise on CAS panel chairman's impartiality
It has been reported that representatives of the World Anti-Doping Agency (WADA) came “very close” to staging a walkout at the Alberto Contador appeal hearing held in November at the Court of Arbitration for Sport (CAS) after it ruled that questions regarding a suspected blood transfusion could not be asked of one of WADA’s key witnesses, the Australian doping expert Michael Ashenden.
WADA and world cycling’s governing body, the UCI, appealed to CAS after the Spanish national federation, the RFEC, acquitted Contador of doping charges relating to his positive test for clenbuterol in a sample taken from Contador on the second rest day of the 2010 Tour de France, which the then Astana rider went on to win.
WADA’s legal team was also reported to have been upset at links between the Israeli Efraim Barak, chairman of the three man CAS panel that is due to issue its decision in the coming days, and Contador’s native Spain. Separately, concern has also been expressed recently over the fact that Contador’s current team, Saxo Bank, chose to hold their recent training camp in Israel.
Contador’s defence has always been that he ate a contaminated steak that had been brought across the border from Spain to Pau in France, and had been eaten on the evening preceding the rest day.
However, according to an Associated Press (AP) report carried by outlets including South African website Sport 24, Ashenden was due to testify that traces of plasticizers in samples taken from Contador during the 2010 Tour could provide evidence of an illegal blood transfusion having taken place.
The theory was advanced in the days following news of Contador’s positive test, which broke at the end of September 2010. Although it is understood to have formed one of the key elements of WADA’s case, it is a controversial issue, in part because no test has ever been formally approved for plasticizers.
AP said that its sources had spoken to it “on condition of anonymity,” due to concerns that their revelations might influence the much anticipated decision, although if that is true the question needs to be asked why they are speaking out now regarding a process that took place behind closed doors.
Ashenden was reportedly due to expand on WADA’s theory as to why the sample taken on the rest day, 21 July, contained minute traces of clenbuterol but no traces of the plasticizer DEHP, used in products including blood bags.
Traces of that substance, but not clenbuterol, had been found in a sample taken on the day preceding the rest day – Stage 15 to Pau, the first that Contador rode in the maillot jaune following Andy Schleck’s infamous slipped chain on the previous stage.
The theory, according to the report’s sources, surrounds the type of bag that may have been used in the supposed transfusion and subsequent storage of blood plasma.
However, Contador’s legal team raised a procedural objection, claiming the alleged chain of events meant that the theory was impossible because of the absence of DEHP in the rest day sample. An expert, testifying on Contador’s behalf, also said that the presence of DEHP in the 20 July sample could have come from a water bottle or by using a drinking straw.
After retiring to consider the issues, the arbitration panel gave its decision, with Barak stating that Ashenden would not be allowed to testify on the issue of plasticizers.
It’s not clear how much weight might have been attached to Ashenden’s evidence had he been allowed to give it. However, one source pointed out, If the goal is to put everything on the table and let the truth shine, why would a panel restrict questions?"
AP’s sources said that WADA’s lawyers came “very close” to walking out of the hearing, according to one, with another adding, “at that point, they seriously were on a knife edge."
As it turned out, they waited until the conclusion of the four-day hearing before submitting a written complaint regarding the fact, as they allege, that they were denied a fair hearing.
Potentially, should WADA lose the case, the could appeal to the Swiss Federal Court which cannot rule on the actual decisions of CAS, but can refer cases back to them should it find that correct procedures have not been followed.
It was also revealed that WADA expressed concern that Barak had travelled to two conferences in Spain, one organized by the Spanish Football Federation, the other by Spain’s National Sports Agency.
As chair, Barak was appointed by ICAS, the body that supervises CAS, while the parties to the case – Contador and the RFEC on the one side, and the UCI and WADA on the other– each appointed one of the other two members of the panel, as is standard practice at the tribunal.
While representatives of the UCI and WADA were present at those conferences in Spain, so too were lawyers for Contador, and while not formally requesting that Barak be removed from the panel, WADA’s lawyers are reported to have expressed their concern to CAS secretary general, Matthieu Reeb.
"We knew that Mr. Barak was invited to speak to the two conferences in Spain,” Reeb told AP. “This is neither confidential, nor prohibited. For the CAS, there was no issue. The conferences were public."
Last week, Reeb denied claims by RadioShack-Nissan owner Flavio Becca – whose team includes Andy Schleck who stands to be awarded the 2010 Tour de France overall win should Contador lose – that Saxo Bank’s recent training camp in Israel, where it was honoured by an official government reception, was a sign that the CAS panel, presided over by an Israeli judge, had already made its decision.
The Contador case has been characterised by controversy in the 15 months since the news was first revealed in September 2010 by the cyclist himself, who had become aware that the German media – the sample had been tested at a WADA-accredited laboratory in Cologne – was about to break the story.
Despite the fact it is one of the parties appealing against Contador’s acquittal by the RFEC, the UCI has come under fire for the delay of more than two months in announcing that the Tour de France winner had tested positive.
A week before the RFEC announced its final decision, the Spanish federation had let it be known that it planned to ban Contador for one year, before announcing that he had been cleared of all charges.
That opened it up to accusations of political interference, with Spain’s Prime Minister and leader of the opposition, as well as other public figures, both stating their support for the cyclist, who is hugely popular in his home country, ahead of the final decision.
Contador went on to win last year’s Giro d’Italia easily, his decision to take part in the race attributed by many to an expectation that CAS, which had been due to hear his case ahead of last July’s Tour de France, would overturn the RFEC decision and ban him.
Instead, the case has dragged on – Contador would ride the Tour and finish fifth as his exertions earlier in the season caught up with him – and despite the hearing now having taken place, there are no signs of the controversy surrounding it going away, even once the decision is finally announced.