(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

in 2011.
The Athlete has approached each of the six
manufacturers that produced the products made
available to the Astana riders in 2010 and received
confi rmation that:
a) none of them use or store clenbuterol or any other
substance from WADA’s Prohibited List in their
warehouses;
b) none of them have ever been blamed for an
athlete’s positive anti-doping test; and
c) all of them carry out external, independent
testing of their products, none of which have ever
revealed the presence of clenbuterol.
The Panel notes that the Appellants do not contest
the three foregoing points.
According to Mr Contador, those declarations by the
supplement manufacturers, in themselves, render it
virtually impossible that clenbuterol could have been
a contaminant in any of the supplements the Athlete
was taking.
For Mr Contador, the Appellants therefore argue
in a last desperate bid that he may have been taking
a supplement that he deliberately did not disclose
because he “knew that he would not escape a sanction as the
use of food supplements is never considered as a fully exonerating
explanation”.
Mr Contador submits that the Appellants suggestion
here assumes that the Athlete would have known
which one of the supplements he was taking was
contaminated with clenbuterol and thus deliberately
chose not to disclose information about that
particular supplement when he provided the RFEC
the names of the 27 different supplements that were
made available by the Astana team to its riders.
According to Mr Contador, not only is the Appellants’
submission in this regard a preposterous speculation,
it is also yet more evidence of the repulsive approach
taken by the Appellants to the Athlete’s case. The
Panel need only consider how the unsubstantiated
proposition made by the Appellants here would be
received if it were made by an athlete who claimed his
positive test had been caused by a supplement.
Findings of the Panel
The Panel considers – based on the evidence before it
– that the supplement theory is possible. This is true
even if one assumes that Mr Contador only took one
of the supplements contained in the list.
Quality checks of products and/or regular doping
tests on the athletes of the First Respondent’s team
may render an adverse analytical fi nding based on
contaminated supplements less likely, but do not
exclude it. In the same manner as the random controls
performed on livestock farming in Spain and Europe
cannot guarantee that contaminated meat will not
reach the consumer, the above-described precautions
cannot exclude that a contaminated batch of
supplements reaches an athlete.
In respect to whether or not the First Respondent
may have used supplements not mentioned on the list,
the Panel is of the opinion that the assertions of the
Athlete himself and the statements of his teammates
are insuffi cient in terms of evidence to rule out that
possibility.
Having found that it is possible that the adverse
analytical fi nding was caused by the ingestion of
contaminated food supplements, it remains to be
examined whether the meat contamination theory
or the food supplement theory is more likely to have
occurred.
7. Is the Meat Contamination Theory more likely
to have occurred than the Supplement Theory?
As has been shown above, the Panel has to assess
the likelihood of different scenarios that – when
looked at individually – are all somewhat remote for
different reasons.
However, since it is uncontested that the Athlete did
test positive for clenbuterol, and having in mind that
both the meat contamination theory and the blood
transfusion theory are equally unlikely, the Panel
is called upon to determine whether it considers
it more likely, in light of the evidence adduced,
that the clenbuterol entered the Athlete’s system
through ingesting a contaminated food supplement.
Furthermore, for the reasons already indicated, if
the Panel is unable to assess which of the possible
alternatives of ingestion is more likely, the Athlete
will bear the burden of proof according to the
applicable rules.
Considering that the Athlete took supplements in
considerable amounts, that it is incontestable that
supplements may be contaminated, that athletes
have frequently tested positive in the past because of
contaminated food supplements, that in the past an
athlete has also tested positive for a food supplement
contaminated with clenbuterol, and that the Panel
considers it very unlikely that the piece of meat
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