(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

Mr Scott notes that during the February 2006 tests
run in the Lausanne WADA-accredited Laboratory,
six collections were taken and not three as alleged
by Dr Ashenden. Calculating Mr Contador’s natural
value based on these six collections does not lead to a
signifi cant difference compared to the data presented
by Dr Ashenden based on three collections. However,
without adequate explanation as to why some values
were excluded and others were not, Mr Scott feels it
is only appropriate to use the full set of data available.
Another argument put forward by Mr Scott is that
Dr Ashenden refers to two papers that indicate
that the expected reticulocyte percentage values
should be lower than those of an athlete’s out-ofcompetition
values. None of the papers makes any
attempt to evaluate a “natural ” value for an athlete’s
reticulocytes nor makes any claims regarding such a
“natural ” value. Furthermore, those papers are only
studies and there is no controlled experiment to test
a hypothesis.
Based among others on this expert report of Mr.
Scott, the Athlete concludes that, as acknowledged
by the Appellants, his blood profi le does not evidence
any transfusion or blood manipulation. The Athlete
concludes that this point does not therefore merit any
further examination.
During the hearing, the discussion between Dr
Ashenden and Mr Scott mainly focussed on how
the Athlete’s “natural ” blood values are to be
established. If the normal procedure is followed and
the comparison is made against the whole range of
data in Mr Contador’s ABP, no abnormal results
are found. However, if Mr Contador’s blood values
during the Grand Tours between 2007 and 2010 are
taken separately, then the values during the 2010
Tour de France are “unusual ”.
In his closing submissions, the UCI noted that the
Athlete’s blood values may well be within the limits
as argued by Mr Scott. However, the UCI added that
this is not surprising because it is the purpose of
manipulation.
Findings of the Panel
After considering the positions of all the parties and
the expert reports of Dr Ashenden and Mr Scott, the
Panel comes to the conclusion that the Athlete’s blood
parameters cannot establish a blood transfusion. The
Panel understands that the Appellants do not want
to prove per se that the Athlete underwent a blood
transfusion but only argue that a blood transfusion is
more likely to have caused the presence of clenbuterol
than the meat contamination scenario.
It is noted that Dr Ashenden sliced the results of
former blood values of Mr Contador, i.e. he used
the samples taken during or shortly before or
after the Grand Tours. The Panel is not convinced
that the comparison conducted by Dr Ashenden
is a suffi ciently secure method of establishing
inconsistencies in Mr Contador’s ABP.
More specifi cally, after considering the positions of
all the parties and the expert reports of Dr Ashenden
and Mr Scott, the Panel fi nds that the inconsistencies
that Dr Ashenden sees in Mr Contador’s ABP are not
conclusive and are deducted from too many uncertain
blood parameters and comparisons, making them
too speculative and insuffi ciently secure to rely on
as convincing supporting evidence that an athlete
underwent a blood transfusion.
However, even if no inconsistencies in the Athlete’s
ABP were established, in the opinion of the Panel,
this does not make the blood transfusion scenario
impossible, bearing in mind, among others, as the UCI
rightly mentioned, that preventing inconsistencies in
one’s ABP is precisely the purpose of transfusing
plasma. This leads the Panel to the examination of
the issue of the traces of phthalates.
5.3 Traces of phthalates
Phthalates are additives that are widely used in
plastics and other materials, primarily to make them
more fl exible. They are used in industry as well as in
medical and consumer products.
Different kinds of phthalates (also referred to as
plasticisers or DEHP) are detected by laboratories
in the anti-doping fi eld, including: Mono-(2ethyl-
5-hydroxyhexyl) phthalates (5OH-MEHP), Mono-
(2ethyl-5-oxohexyl) phthalates (5OXO-MEHP) and
Mono-(2-ethylexyl) phthalates (MEHP). An elevated
concentration of phthalates after blood transfusion
has been shown in several recent studies. Some blood
bags used for transfusion contain plasticizers, which
can easily migrate into the blood.
In relation to the samples collected from the Mr
Contador the following fi ndings are undisputed:
The day before Mr Contador tested positive to
clenbuterol, i.e. on 20 July 2010, he provided another
sample (n°2512049). This sample was tested by the
Cologne Laboratory, which detected that it contained
an extremely high concentration of phthalates. The
concentration of 5OH-MEHP reported for the
Athlete’s Sample was 478.5 ng/mL; for 5OXO-
MEHP, the concentration was 208.6 ng/mL. These
fi gures had been corrected and were based on a
Jurisprudence majeure / Leading cases
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