(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

analytical fi nding, i.e. as alternative explanation for
the presence of clenbuterol in the Athlete’s system
compared to the meat contamination scenario relied
on by him.
In other words, the Appellants did not initiate the
disciplinary proceedings on the grounds of an alleged
blood transfusion.
In his submissions, the Athlete has criticized the
foregoing fact – i.e. the lack of direct correlation
between the charge brought and the facts invoked
to evidence the existence of an anti-doping violation
- and has shown obfuscation in that connection,
arguing that such approach of the anti-doping
authorities is unacceptable.
The Panel is of the opinion that the foregoing
criticism is incorrect.
As explained above, the Appellants could not in the
case at hand simply contest the contaminated meat
scenario, but – due to their obligation to cooperate
in elucidating the facts - had to substantiate their
contestation, i.e. they were bound to give an
explanation as to why they thought the contaminated
meat scenario was untrue and why they believed such
scenario to be impossible or at least less likely than
other alternative scenarios.
In view of this obligation to cooperate in establishing
the facts of the case and considering that neither
the applicable rules nor principles of fairness
dictate otherwise, the Panel fi nds that – subject to
the comments below concerning their procedural
approach - the Appellants cannot be criticized for
invoking and defending their alternative scenarios,
including the blood transfusion theory. However,
the Panel notes, in weighing the evidence before
it, that neither UCI nor WADA were apparently
confi dent enough to bring a doping charge against
the Athlete based directly on their allegation of a
blood transfusion.
To sum up, for the above reasons, the Panel fi nds that
although the blood transfusion theory is a possible
explanation for the adverse analytical fi nding, in light
of all the evidence adduced and as explained above, it
is very unlikely to have occurred.
The Panel has thus concluded that both the meat
contamination scenario and the blood transfusion
scenario are – in principle - possible explanations
for the adverse analytical fi ndings, but are however
equally unlikely. In the Panel’s opinion there is no
need to further investigate the relationship between
the two foregoing scenarios since, as will be
detailed below, the third scenario (the contaminated
supplements scenario) is not only possible, but the
more likely of the three.
6. The Supplement scenario
Submissions by the Parties
According to WADA, another plausible scenario
is that the adverse analytical fi nding results from a
contamination through a food supplement.
The existence of contaminated food supplements in
general is uncontested and there are numerous cases
of athletes who have tested positive after having
ingested contaminated food supplements.
WADA points out that such food supplement
contaminations have also involved clenbuterol and
in that connection it invokes as an example the CAS
2009/A/1870 case, which was adjudicated by the
CAS.
In the CAS 2009/A/1870 case, the athlete tested
positive for clenbuterol, like Mr Contador. After
being informed of her positive result, she had the
food supplements she was regularly taking tested
by a laboratory. The analysis showed that those
supplements were tainted with clenbuterol. The
contaminated supplement was supplied by AdvoCare,
an established health and wellness company, which
endorses hundreds of top-level American athletes
like Ms CAS 2009/A/1870.
This case illustrates – according to the Appellants -
that it is possible for an athlete to test positive for
clenbuterol because of a contaminated supplement
even if the product is purchased over the counter
from an apparently reliable source. Furthermore,
this case shows that the substance involved here, i.e.
clenbuterol, is precisely one that can be found in food
supplements.
Mr Contador contested these allegations by
submitting that he only used the food supplements
of the Astana team. In that connection, Mr Contador
provided a list of the food supplements used by the
Astana team during the 2010 Tour de France. This
list was drawn up by Mr José Marti, assistant coach,
and Mr Valentin Dorronsoro, chief masseur, of the
Astana team. In a statement dated 9 November 2010,
Mr Marti Marti and Mr Dorronsoro confi rmed that
Mr Contador used these food supplements.
According to WADA, Mr Contador’s allegation is not
verifi able and no analysis has been provided to show
that these supplements could not be contaminated.
Jurisprudence majeure / Leading cases
-
137