(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

initials corresponding to those of Mr Contador
were found in certain handwritten documents of Dr
Fuentes and Mr Jörg Jaksche testifi ed accordingly in
his own doping case. Finally, Mr Contador’s current
team manager, Mr Bjarne Riis admitted to having
used performance-enhancing drugs during his career.
WADA does not argue that these alleged facts are
suffi cient in themselves to establish that Mr Contador
should be sanctioned for an anti-doping rule
violation. However, according to WADA, the tainted
environment in which the Athlete lives, enhances the
likelihood that the source of the adverse analytical
fi nding is doping rather than a contaminated piece
of meat. Furthermore, these facts contradict the
statement of the Athlete who misleadingly claims
that he has always been surrounded by “ people (cyclists,
doctors, trainers, etc.) who categorically reject the use of doping
substances ”. The statement of Mr Contador, claiming
that he does not know the highly controversial Dr
Fuentes is also undermined by the admissions of his
former team-mate Mr Jörg Jaksche.
Mr Contador submits that the Appellants’ attempt
to fashion his guilt by association is not only
unacceptable but also carries no evidentiary weight.
Prof. Hans Michael Riemer concludes in his expert
report that reliance on such evidence would be
contrary to Swiss law. “ One could argue that relying on
the fact that former teammates committed a doping offence in
the past to rebut the contention that a prohibited substance was
ingested by meat contamination would amount to a fi nding of
guilt by association. Moreover, taking into account behaviours
or conducts for which the accused person is not responsible
is intrinsically in violation of the requirement of due process
because the accused person is deprived of his or her right to
defence, given that he or she has no infl uence or control over the
relevant facts. […] Relying on the fact that doping is allegedly
widespread in cycling at any stage of the legal reasoning leading
to the imposition of a sanction would not only be arbitrary as
such, but also run against the principle nulla poena sine lege
certa ”.
Findings of the Panel
The Panel considers that the tainted environment
of the Athlete should carry no evidentiary weight in
assessing whether Mr Contador underwent a blood
transfusion or not.
No person in the “environment ” of Mr Contador saw
or alleged that Mr Contador underwent a blood
transfusion. No person submitted that Mr Contador
knew of their wrongdoings or that they acted in part
or entirely in concert with each other. This is all the
more surprising since the blood transfusion scenario
implies that at least a group of people must have
been involved (Athlete, donor of plasma, somebody
harvesting the plasma, somebody storing the plasma
and blood bags, somebody re-injecting the plasma
and the blood, etc).
Being in “bad company ” is no more or less of an
indication of illicit behaviour for an athlete than
family ties are between cattle farmers (see supra).
In saying that, the Panel also notes that being in
“good company ” is no indication whatsoever that an
Athlete is not involved in doping. The same applies,
in principle, to the evidentiary value of personal
declarations by an athlete alleging that he has never
doped before.
Finally, the Panel does not ignore the fact that Mr
Contador himself used a similar argument in putting
forward several investigations of the Spanish police
regarding meat contamination cases in order to make
it more likely that the farm of Mr Lucio Carabias
illegally fattened its cattle. However, in view of its
above-developed reasoning concerning the meat
contamination theory, the Panel did not give any
specifi c evidentiary weight to the said investigations
either, and fi nds that the actions of certain persons,
or certain general circumstances, should not in
principle affect the way the evidence concerning a
specifi c person or case is taken into consideration
and evaluated. The same standard of assessment is
therefore applied to the arguments of both sides in
this dispute.
5.2. The Athlete’s blood parameters
Submissions by the Parties
WADA submits that following the introduction
of the ABP in cycling, professional cyclists have
admitted to masking practices that hide the use of
blood transfusions.
In that relation, it submits that the variation of blood
parameters can be manipulated in order to obtain a
blood profi le consistent with natural values. Blood
transfusions can be detected notably because they
lead to an increase of haemoglobin values. The spike
in haemoglobin values can however be artifi cially
diminished by an addition of plasma to dilute blood.
After a transfusion, a diminution of the reticulocytes
values is observed. In order to mask this variation,
athletes use microdose injections of an erythropoiesis
stimulating agent.
According to WADA, Mr Contador chose to rebut
the accusation of doping in the proceedings before
the CNCDD of the RFEC by referring to his blood
parameters. These parameters would supposedly
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