(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

which will be addressed in detail below - although
the use of clenbuterol in Spain was prohibited in
livestock farming prior to such implementation,
it was sanctioned only through the imposition of
administrative sanctions (i.e. a fi ne) and not at a
criminal level through, for example, imprisonment; d)
Lucio Carabias has also been subjected to a number of
controls without a positive case of clenbuterol or any
other beta-agonist. In particular, six random samples
of his animals were taken by the veterinarians of the
Felipe Rebollo slaughterhouse throughout 2009 and
2010.
In addition to WADA’s arguments, the UCI puts
forward that the circumstance that the brother of the
farmer who supplied the animal was fi ned is of no
avail because if any association with the brother of
Mr Lucio Carabias Muñoz were to be made, it would
have led to targeted and more frequent controls and
this was not the case.
Mr Contador submitted that the animal in question
could also have come from a different supplier.
According to the Report revealed by Castellana
Detectives, the origin of the meat is not certain and
could in fact even have been supplied by another
supplier. The uncertainty of the precise origin of the
meat means that if it was not the product of an animal
reared in Spain, there also exists the possibility that it
could have been the product of a cow reared in South
America. This uncertainty means that it is impossible
to know for certain what controls were in place at the
location of the animal’s location of origin.
However, whether the meat came specifi cally from Mr
Lucio Carabias Muñoz, or from an unknown location
in Spain, or even South America, it remains that the
risk that the animal from which the meat came was
treated with clenbuterol is not only conceivable but
is likely, fi rst, because there is clenbuterol in the
Athlete’s system, second because the clenbuterol
cannot plausibly have come from any other source,
and third because of the history of clenbuterol abuse
in each of the potential sources.
Even assuming the Appellants had conducted the
necessary degree of investigation to confi dently come
to such a conclusion, they presume that because
there is no history with clenbuterol, the meat is
unlikely to have been contaminated. According to
Mr Contador, that is a surprising conclusion of the
Appellants; in order to try and demonstrate their
allegation, the counsels for Mr Contador asked the
following question and invited the Panel to consider
it by analogy: Would the Appellants conclude that
an athlete did not dope or had been the victim of
food supplements contamination on the basis that he
passed 500 doping control tests before failing one?
They do not.
The Athlete argues that the Appellants cannot
plausibly suggest, as they appear to, that it is suffi cient
to ask those involved in the supply chain whether they
have had any problems with clenbuterol to conclude
that the meat is unlikely to have been contaminated.
It is surprising that the Appellants would consider
such a level of proof suffi cient to come to such a
conclusion. In any event, it is unlikely that a butcher
or its distributors would know that meat handled by
them had been contaminated with clenbuterol. A
more appropriate approach by Winterman Detectives
would have been to enquire as to the number of
meat samples collected from the butcher and meat
supplier which had been analysed for the presence of
clenbuterol. However, no evidence is advanced that
such spot checks for the presence of clenbuterol have
ever taken place.
Mr Contador submits that given that the precise source
of the meat remains unresolved, it cannot defi nitely
be traced back to the Felipe Rebollo slaughterhouse,
Lucio Carabias Muñoz or even necessarily to being
Spanish meat. The alternative is that it came from a
different meat distributor, a different slaughterhouse,
a different farm and a different country in respect of
which there is no information as to what controls, if
any, were in place at the point of origin.
Mr Contador further submits that of course,
any discussions in relation to the supply chain
are irrelevant if the animal from which the meat
originated was one of the 99.98% animals not tested
in Spain in 2010. Moreover, Mr Contador asserts that
the animal identifi ed by the Traceability Report and
the Appellants as the one most likely to have been the
source of the meat did not undergo any testing before
or after slaughter.
According to Mr Contador, the fact that Mr Domingo
Carabias, the brother of Mr Lucio Carabias Muñoz
and formerly joint director, had in fact previously been
sanctioned for the illegal use of clenbuterol to fatten
cattle is of utmost importance. Taken against a context
in which the Athlete ate the meat and then tested
positive for clenbuterol, this could mean one of two
things: 1) the meat did indeed come from an animal
reared by Mr Carabias Muñoz that was treated with
clenbuterol; or 2) if it did not, the fact of the Carabias
Muñoz family’s previous history with clenbuterol
abuse is not just an astonishing coincidence, but is
in fact an indicator of the prevalence of clenbuterol
abuse in the Spanish farming industry.
Jurisprudence majeure / Leading cases
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