(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

WADA that the calculations regarding this person
show a 25% greater concentration of clenbuterol than
in Mr. Contador’s sample, is misguided according
to Prof. Martín-Jiménez, since in pharmacokinetics
it is well known that one needs to study a large
population of individuals in order to quantitatively
describe relationships between demographic or
clinical variables and drug exposure parameters.
According to the Athlete, the volumes relied upon
by WADA are fl awed. One cannot deduct from
the data based on a few doping tests the total daily
urine volume, since the volume gathered during
doping control tests is limited by the size of the urine
collection vessel. In addition the Athlete points out
that, for reasons of hygiene, he never fi lls the whole
vessel to the brim.
The Athlete therefore conducted a test of his own, to
use as evidence in this proceedings, and on such basis
fi led a report concluding that he produced an average
daily volume of urine of 2.115 L.
The Panel accepts the allegation that an athlete for
reasons of hygiene would usually not fi ll the collection
vessel to the brim. However, based on all the evidence
adduced and in particular the expert testimony at
the hearing, including Dr Ashenden’s indication
that professional athletes usually have a lower urine
production than normal persons due to being partially
dehydrated, the Panel is reluctant to accept that the
Athlete has an average urine production of 2.115 L
per day. In reaching this conclusion the Panel took
into account that, on the one hand, the sample was
taken during the Tour de France and, on the other,
that it was not collected during the competition but
on a rest day. In this respect the Panel rejects the
assertion of Mr Contador in his submissions stating
that, since it was a rest day the test should not have
been considered an in-competition test. In doing so,
the Panel refers to the defi nitions contained in the
UCI ADR, according to which ‘In-Competition refers to
the period that starts one day before or, in the case of a major
tour three days before the day of the start of an Event and
fi nishing at midnight of the day on which the Event fi nishes’.
In addition, the Panel took into consideration that
the Athlete’s test was not carried out in a controlled
environment, corresponding to the typical conditions
required of a scientifi c experiment.
However, one must also note that the data coming
from WADA concerning the Athlete did not come
from a scientifi cally controlled environment either.
Hence the data before this Panel must be evaluated
and used with caution. Summing up, therefore, the
Panel fi nds that an average urine production of 2.115
L is rather at the high end of the possible range when
assessing the blood transfusion as a whole.
5.3.3.4 Fitting to the data
The experts also debated on the topic of “data fi tting”
during the hearing.
According to WADA, the oral model (for the intake
of Clenbuterol) used by Prof. Martín-Jiménez is
incorrect.
However, Prof. Martín-Jiménez is of the opinion
that the model used in this particular case to obtain
predictions is less important than the fi tting of the
data at hand. Furthermore, Prof. Martín-Jiménez is
of the opinion that the intravenous data upon which
Dr Rabin relied is not well fi tted, which skewed the
results obtained and reported. By way of illustration,
Prof. Martín-Jiménez states that he was able to better
fi t the intravenous data to his old oral model than Dr
Rabin did with his intravenous model. In practical
terms, this allegedly would mean that the results
obtained and reported by Dr Rabin in relation to
urinary concentrations of clenbuterol were biased in
favour of WADA’s position. In order to obtain more
accurate predictions based on the intravenous data,
Prof. Martín-Jiménez applied the intravenous data to
his own intravenous model.
The panel took note of the differences of opinions
between the two experts in relation to this issue of
fi tting.
However, with respect to the overall assessment and
conclusion in respect of the blood transfusion theory,
the panel considers that the impact on the fi ndings of
the experts’ deriving from their different approaches
to the fi tting of the data is insignifi cant enough to
not require a determination as to which method is
better suited.
5.4 The Panel’s conclusions regarding the Blood
Transfusion Theory
As a preliminary matter, the Panel notes that the
primary object of this appeal is the fi nding of a
Prohibited Substance (clenbuterol) in the Athlete’s
Sample.
Only on a secondary basis is the Panel invited to
consider the scenario of a blood transfusion. Indeed,
neither the UCI nor WADA initiated nor requested
to initiate disciplinary proceedings against Mr
Contador in respect of an alleged blood transfusion;
the theory of the blood transfusion having only been
raised, together with the food supplement’s scenario,
by the Appellants as an explanation for the adverse
Jurisprudence majeure / Leading cases
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