(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

in those countries is rampant. Since the level of
clenbuterol testing in Spain is so low, it is not only
plausible, but it is likely that dishonest farmers who
wish to improve the size and leanness of their animal
would resort to using clenbuterol, which is also
mentioned by Dr Tomás Martín-Jiménez in his expert
report. According to Mr Contador, the Castellana
Detectives’ report also proves that clenbuterol can be
easily purchased on the Internet, without the need for
offi cial documents.
Therefore, Mr Contador concludes that it cannot
be disputed that there exists, to this day, an illicit
practice of clenbuterol use in stockbreeding countries
around the world and that humans are exposed to the
risk that they might consume meat from an animal
treated with clenbuterol. The Appellants’ argument
that farmers are not using clenbuterol because it is
banned in Spain is not grounded in reality.
Findings of the Panel
The Panel took note of the fact that the sanctions
imposed on farmers using clenbuterol or other
beta-agonists to fatten their cattle became much
more severe after the implementation in Spain
of the mandatory EU Regulations but fi nds that
the existence of more severe sanctions today does
not, in itself, disqualify the meat contamination
theory. That said, the Panel fi nds that the statistics
regarding the use of clenbuterol or beta-agonists in
general corroborate the allegation of the Appellants
that after the implementation of these Regulations,
the illicit practise of illegally fattening cattle using
clenbuterol became very rare in Spain. This fact is also
corroborated by the fi gures and statistics contained
in the report of Castellana Detectives submitted by
Mr Contador and by the testimony of Mr Martin of
Castellana Detectives who testifi ed at the hearing.
4.2.3 As to the statistics
Submissions by the Parties
WADA submitted that, based on the amount of
clenbuterol present in the bodily sample of the
Athlete, the meat consumed would have had to have
been contaminated to a level signifi cantly in excess
of the minimum detection levels in the EU within
the context of the National Residue Monitoring
Plan (“ NRMP ”), most probably around ten times
the maximum permitted residue limit under EC
Regulation EC 2391-2000. The estimation of the level
of contamination of the meat is in the range of 1 ug/
Kg according to the expert report of Dr Rabin. From
this report it can also be derived that these levels of
contamination mean that the relevant animal would
have been slaughtered immediately or shortly after the
administration of the last dose of clenbuterol. This
is a pre-requisite to the meat contamination theory
advanced by the Athlete which makes little sense in
the eyes of WADA. On the one hand, the animal
would not “benefi t” from the substance to the fullest
extent and on the other hand, it increases the risk for
the farmer of being caught through the routine and
random evaluations and inspections carried out at the
slaughterhouse.
According to WADA, the Commission Staff Working
Document on the Implementation of National Residue
Monitoring Plans in the Member States in 2008 (the “EU
2008 Report ”) is concrete evidence of the extreme
rarity of the use of clenbuterol in livestock farming
in Europe. Nearly three hundred thousand tests
conducted on animals in 2008 across the Member
States have not resulted in a single confi rmed case of
clenbuterol.
The EU 2008 Report provides even more detailed
fi gures with respect to tests specifi cally carried
out on bovines for the purpose of detecting betaagonists.
23,966 targeted and suspect samples were
conducted on bovines for beta-agonists in 2008
and not a single non-compliant sample involving
clenbuterol has been fi nally confi rmed; one case in
Italy remains under investigation. Indeed, out of the
41,740 samples across all relevant animal types which
were specifi cally analysed for beta-agonists, there
were only two non-compliant samples, both in the
Netherlands and neither involving clenbuterol.
WADA further point out that the samples recorded
in the EU 2008 Report fall into two categories:
“ Targeted Samples ” and “Suspect Samples ”. Whereas
the latter category relates to samples taken as a
direct result of previous non-compliant samples or
the suspicion of illegal treatment at any stage of the
food chain (and is therefore, it is submitted, much
more likely to produce further non-compliant results
than a random sampling methodology), even the
former category (i.e. Targeted Samples) is aimed at
the categories and types of animals most likely to
produce non-compliant results.
Even 1) assuming that all of the samples recorded
in the EU 2008 Report were random and that the
clenbuterol case in Italy was confi rmed (as opposed
to being merely a suspect sample); and 2) taking only
the statistics specifi cally relating to beta-agonists
in bovines, the necessary conclusion is that out of
23,966 samples, only one contained clenbuterol.
Therefore, based on these fi gures, the probability
that a given bovine in Europe would be contaminated
with clenbuterol at a level capable of being detected
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