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

by Simon_MacMichael   January 11, 2012  

Alberto Contador Press Conference in Yellow © PhotoSport International.jpg

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.

19 user comments

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** SLAP **

andylul's picture

posted by andylul [406 posts]
11th January 2012 - 16:20

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This is ridiculous. Surely they can't rule out evidence on the basis that it can't be correct, without having actually heard it? The obvious way to do it would be to hear the evidence and then hear the opposing evidence suggesting why it can't be correct, or why there are other explanations.

What is worse is that we've all come to expect partisan and pointlessly convaluted decision making processes from the UCI, but CAS is supposed to be the point of redress when the UCI gets it wrong. In this case, the UCI hushed it up, the Spanish federation stuffed it up, and CAS has made the whole situation worse!

Guessing that we can expect Contador to get away with a pointless back-dated (not really a) ban. At least then we can all get back to watching cycling instead of watching court appearances and lawyer's press conferences...

posted by step-hent [639 posts]
11th January 2012 - 17:04

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The truth is hard to come by when hearings are behind closed doors and the panel is made up from an old boys network.

The entire process has once again thrown cycling into the spotlight for the wrong reasons and the entire UCI/CAS process smacks of a comfy FIFA-esque, clique that should no longer exist in a professional assocation.

posted by bikewithnoname [26 posts]
11th January 2012 - 17:20

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This is starting to "outshine" the lance armstrong
case Smile

still on the 3rd switch-back of Bwlch !

posted by therevokid [587 posts]
11th January 2012 - 18:14

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Nothing worse than a dodgey spanish drug mule... well maybe a dodgy spanish drug mule with contacts.

Life behind bars.

Graham Howell's picture

posted by Graham Howell [55 posts]
11th January 2012 - 20:19

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Contador is a cheat.

posted by paulfg42 [358 posts]
11th January 2012 - 20:36

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The plot's getting thicker than the investigators.

antonio

antonio's picture

posted by antonio [899 posts]
11th January 2012 - 21:14

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@therevokid What Lance Armstrong case?

Andy

posted by jazzdude [48 posts]
11th January 2012 - 21:15

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Ahem, innocent until proven guilty. After months of persuasion, I am starting to believe that the beef alibi may in fact be true.

Anyway, Contador's a nice guy, be nice to him Not Talking

Sir Velo

Raleigh's picture

posted by Raleigh [1725 posts]
11th January 2012 - 22:30

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Interesting about the plasticisers in the bottles. After drinking from them for some time it must register? We're told not to microwave stuff in baby bottles when feeding little ones as the chemicals can leach.Not really thought about my bike bottles though!

posted by Marmoset [7 posts]
11th January 2012 - 23:43

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Raleigh wrote:
Ahem, innocent until proven guilty. After months of persuasion, I am starting to believe that the beef alibi may in fact be true.

Anyway, Contador's a nice guy, be nice to him Not Talking


What evidence is there to show it's the beef was wot dunnit? None. Zero. And the Spanish meat trades were up in arms about it.
Lionel Birnie on contaminated beef.

As for being a nice guy, I don't see that at all. I see a great athlete, a dedicated, focussed individual with a passion for winning that Andy Schleck doesn't have yet, but not "a nice guy" per se (but equally not another Lance either). Maybe his close friends see a nice guy.

Sometimes things have to get worse before they get better. Perhaps this 18 month old story drags on further and the image of the sport suffers further before a really significant change happens.

Simon E's picture

posted by Simon E [1785 posts]
12th January 2012 - 0:07

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Marmoset wrote:
Interesting about the plasticisers in the bottles. After drinking from them for some time it must register? We're told not to microwave stuff in baby bottles when feeding little ones as the chemicals can leach.Not really thought about my bike bottles though!

I believe some can leach anyway, but much faster if heated. I can't remember whether microwaves break down the structure of certain plastics in some way. I don't know if the plasticizer used in medical blood bags is the same as in normal plastic bottles.

I don't like the smell of new water bottles so I bought a couple of Elite Nature bottles for the kids from the LBS as they're free of Bisphenol-A and they weren't expensive (the bottles, that is).

The offspring are likely to be at much greater risk of contamination from other sources - non-organic cotton clothing, and interestingly New car smell for instance, though there's absolutely zero chance of experiencing the latter in our household!

Some info:
http://walking.about.com/od/hydration/f/bpafree.htm
http://www.scientificamerican.com/article.cfm?id=plastic-not-fantastic-w...

Simon E's picture

posted by Simon E [1785 posts]
12th January 2012 - 0:43

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Raleigh wrote:
Ahem, innocent until proven guilty. Not Talking

Um, not in this case. The burden of proof is on Contador to explain how it got in his system and why that means he shouldn't be sanctioned.

He's guilty of an offence, clenbuterol was in his system, he's never denied that. RFEC accepted his excuse and acquitted him.

Simon_MacMichael's picture

posted by Simon_MacMichael [7507 posts]
12th January 2012 - 0:54

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If plasticiser traces can come from straws or bottles, why don't all riders register plasic in the blood, consistently? Geniune q, nothing more. I got the impression that the presence of plasticisers was a near-cert sign of blood doping from reading an article by Ashenden.

posted by james-o [178 posts]
12th January 2012 - 7:22

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scientific evidence has to have been accepted once tested. This plasticiser test etc hasnt and is rightly inadmissable. Get off his back for F@@@s sake.

AMUNT ALBERTO !!!!!!!!!!!!!!!!!!!!!!!

La Brisa Fresca's picture

posted by La Brisa Fresca [44 posts]
12th January 2012 - 13:23

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La Brisa Fresca wrote:
scientific evidence has to have been accepted once tested. This plasticiser test etc hasnt and is rightly inadmissable. Get off his back for F@@@s sake.

AMUNT ALBERTO !!!!!!!!!!!!!!!!!!!!!!!


Are you from Spain, by any chance??? Where sports administrators look far too kindly on drug cheats Sad

Simon E's picture

posted by Simon E [1785 posts]
12th January 2012 - 15:13

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Big Grin Any way. Wots this about Lance being a drug cheat? Never tested positive, don't forget. Actually, I'm proper surprised that no-one bleated about the fact that as he had bits of his body removed due to the big C, he had a weight advantage over everybody else! Thats how stupid this case with Cheatador really is. He tested positive, and its up to him to prove otherwise. Case solved! Thinking

stokeybloke

posted by stokeybloke [32 posts]
12th January 2012 - 16:25

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His explanation was accepted by RFEC, he's not guilty at the moment. UCI/WADA appealed to CAS, the onus would have been on them to prove him guilty. We await the decision!

I am going to Benidorm in May for a week, does this mean I am in cahoots with one side or the other? I don't have any meetings scheduled with the Spanish Prime Minister or Efraim Barak though.

posted by alun [44 posts]
12th January 2012 - 21:39

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Quote:
If plasticiser traces can come from straws or bottles, why don't all riders register plasic in the blood

They would do, unfortunately for Contador his only team mate tested at the same time hadn't been drinking from a plastic bottle that day...

posted by tarquin_foxglove [73 posts]
12th January 2012 - 22:09

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