(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

pursuant to EC Regulation 2391-2000 would be
0.0042%.
This percentage would have to be further reduced to
take into account the fact that the samples recorded
in the EU 2008 Report (both the Suspect and the
Targeted Samples) are not random but pre-selected
to be more likely to produce a non-compliant result.
Indeed, one should also consider that the presence
of clenbuterol within livestock at a farm would not
necessarily result in contaminated meat after the
slaughter of such livestock (i.e. if the animals are
slaughtered after the clenbuterol has exited their
system); the “suspect sample” case of clenbuterol in
Italy was in fact taken at a farm and based therefore
on living animals. The percentage of contaminated
meat available at retail outlets (e.g. butchers) would
therefore be smaller still. The actual percentage
possibility of a piece of bovine meat bought at a retail
outlet in Europe being contaminated with clenbuterol
is therefore according to WADA’s submissions and
based on the most recently published European
statistics, substantially less than the level mentioned
above.
An analysis of equivalent reports (to the EU 2008
Report) from previous years reveals that Spain has
had just one positive case of clenbuterol since (and
including) 2004, such case occurring in 2006. A
summary analysis of these reports from previous
years also reveals a marked decreasing trend in terms
of beta-agonist contamination in targeted bovine
samples. The following percentages of such samples
were positive for any beta-agonist (as opposed to
just clenbuterol): 2005: 0,08%, 2006: 0,06%, 2007:
0,01%, 2008: less than 0,009%. It is therefore logical
to assume that this clear trend continued in 2009 and
2010.
According to WADA, the above statistics alone are
suffi cient to conclude that the possibility that a given
piece of meat bought in Europe is contaminated with
clenbuterol is vanishingly thin.
The statistics at regional level in Spain confi rm that
clenbuterol contamination is extremely unlikely in the
relevant regions of the Basque Country and Castilla y
Léon. In Castilla y Léon, offi cial fi gures of the Health
Ministry of the “ Junta de Castilla y Léon ” reveal that
between 2006 and 2010, 7,742 bovine samples were
taken specifi cally to detect beta-agonists and not a
single positive of clenbuterol has occurred during
this period. Between 2006 and 2009 (inclusive), 396
bovine samples were analysed for beta-agonists,
again without a single positive clenbuterol fi nding.
WADA reminded the Panel that it is of course not
able (nor required) to prove (statistically or otherwise)
that there is not a single piece of contaminated meat
in Europe, Spain or the Basque Country.
WADA is supported in its conclusions by Dr Martin-
Pliego López, as he concludes that the probability of
a bovine animal being contaminated with clenbuterol
has been zero or almost zero in Spain during the last
few years.
In his written submissions, Mr Contador contends
that the arguments used by WADA are erroneous
and misguided. The EU 2008 Report contains
severe limitations and the dangers of relying on it are
outlined in detail in a report prepared by Prof. Sheila
Bird:
a) The “analysis at EU-level tacitly assumes – but does
not evidence – that the member states’ random sampling
plans are all of the requisite standard and are comparably
robust”;
b) The EU’s testing regime is based on lowfrequency
random testing of bovines; she
explains that “Low-frequency tests, unlike universal
testing, have low deterrence-value and they are more
readily avoided, or results falsifi able”;
c) The EU implements such a low minimum
random sampling rate of bovines to be tested
for clenbuterol per member state (only 125 need
be clenbuterol tested per 1 million slaughtered
bovines) that its random surveillance “can only
have low deterrence value”; and
d) The EU 2008 Report fails “properly to report how
many random bovine samples were actually subject to
clenbuterol testing”. This is a fundamental fi gure
which has not been reported.
The cases mentioned by Mr Contador regarding the
illicit use of clenbuterol and other growth agents in
Spain show that it remains a signifi cant problem to
this day. Yet, the fi gures relating to Spain reported in
the EU 2008 Report clearly do not refl ect that, which
means either that the reporting of positive results
is inaccurate or the level of testing is inadequate, or
both.
The offi cial fi gures from the Basque Country and
Castilla y Léon also have severe limitations according
to Prof. Bird:
a) The “meagre” number of 353 samples
tested for clenbuterol at the Felipe Rebollo
slaughterhouse(s) between 2006 and 2010,
cannot rule out a clenbuterol contamination rate
Jurisprudence majeure / Leading cases
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