Alberto Contador’s Court of Arbitration for Sport hearing was awash in controversy. The president of the three arbitrator panel, Efraim Barak, was accused by Radio Shack-Nissan team owner Flavio Becca of being biased for Contador. Then WADA lawyers were blocked from cross examining their expert witness Michael Ashenden, an act that nearly drove the WADA lawyers to walk out in protest. Finally, the panel’s ruling settled on a theory that Clenbuterol entered Contador’s system via a tainted supplement, a theory that Contador flatly rejected.
I spoke with Blood Passport panelist Ashenden about these anomalies and his role in the Contador arbitration. For further background Part II of the CAS ruling provides a timeline of the case from test to arbitration.
Blood Doping Refresher
AS: Before we get into the arbitration hearing itself, I think we need to bring the readers up to speed on blood doping. In brief, transfusions existed in the 70’s and 80’s, to be supplanted by EPO in the mid 90’s, which was a much simpler procedure. EPO, then undetectable, was curtailed by the 50% hematocrit threshold until a test was developed in 2000, at which time its use began to diminish and blood transfusions reappeared.
A test for homologous transfusion (using someone else’s blood) was developed in 2004, but autologous transfusion (using one’s own blood) remained largely undetectable until the development of the Athlete Biological Passport in 2008. While many believe that the sport is much cleaner thanks to the Passport program, athletes were in fact engaged in sophisticated measures to mask blood transfusions.
Let’s talk about these measures, starting with masking with plasma infusions. When blood is drawn from the athlete, it’s spun to separate the red blood cells from the plasma. Why is this done?
MA: Well, the first point to realise is that it’s the red blood cells which boost performance, not the plasma. The second point is that red blood cells are living entities which consume fuel and produce waste products. While they are in circulation the body easily manages this process, but once they are removed and put into storage it becomes a critical limiting factor. It is well known that cooling the red cells reduces their rate of metabolism and therefore the stress upon the cells - so keeping red cells refrigerated extends their lifespan from a day or so out to about six or eight weeks. Cooling them even further, by freezing them, extends that lifespan to ten years. But if the red cells are frozen when they are immersed in plasma, they are destroyed.
Most readers will be familiar with how water expands when it freezes, so it’s easy to visualise a red cell which is packed full of water expanding during freezing until the membrane bursts. The workaround is to remove most of the water by rinsing the red cells in glycerol baths, which gently suck out the water from inside the cells. Spinning down the blood to separate the red cells from plasma is thus the first step in this storage process.
Incidentally, it’s routine practice for blood banks to spin down blood even when it is only going to be refrigerated - this is because separating the blood into its component fractions allows them to make the best use of each donated unit of blood. Patients needing extra oxygen carrying capacity require the red cells but not plasma or platelets, whereas other clinical applications require plasma or platelets but not red cells. So separating the cells from plasma makes best use of a scarce resource.
AS: And it turns out that the plasticizer DEHP, which is used to keep PVC bags flexible, helps preserve red blood cells as well? Would you store plasma in plasticized bags?
MA: It certainly struck me as curious when I first encountered the transfusion literature that shows very clearly that red cells are best preserved by exposing them to the plasticiser DEHP. You can think of DEHP as a lubricant. There is a general agreement that the enhanced preservation is related to how the DEHP interacts with the red cell’s membrane. Just as DEHP makes the PVC plastic softer, it seems to play a similar role for red cells.. In other words, it seems to maintain the pliability of the membrane, which is important for their survival.
Of course, this is irrelevant when storing plasma, because there are no cell membranes that need to be preserved. Plasma storage is not enhanced by the presence of DEHP. In fact, typically plasma is deliberately stored in bags that do not contain DEHP, because the different type of plastic used in non-DEHP bags favors the movement of oxygen molecules through the plastic. It turns out that the extra oxygen available benefits the storage of platelets, and so non-DEHP bags are the preferred choice when you are storing plasma and platelets.
AS: If you transfuse just red blood cells, would your rbc/plasma ratio be off? Was this ratio used as a test for transfusions before the full Biological Passport came in effect?
MA: Yes, that’s right. There is a genetically-determined relationship between the ratio of red cells and plasma in circulation. It’s referred to as haematocrit, and for a typical male their blood is comprised of 45% red cells and 55% plasma. So of course, transfusing just red cells bumps up that ratio, and yes this was the basis for the UCI’s old ‘Haematocrit Rule’ that imposed a no start on any cyclist whose haematocrit exceeded 50% unless they had a previous dispensation for high haematocrit levels. Back then of course the 50% rule was primarily aimed at deterring EPO use, but the rationale was the same.
AS: If this is the case, why not just transfuse whole blood?
MA: There’s a helpful thought experiment which illustrates your point. If your readers were to imagine that they had 5 litres of blood in their circulation, a haematocrit of 45%, but also had a half litre bag of identical blood with a 45:55 ratio of red cells:plasma sitting alongside them, what would happen to their haematocrit when they reinfused that blood bag? The answer is that to begin with, nothing would change! Their haematocrit would be exactly the same, because the blood they introduced has the same haematocrit as the blood already in their vessels.
However, the body carefully regulates the pressure of blood within the circulation. Introducing an extra half litre of blood expands the volume, and consequently the blood pressure. Once red cells are injected into the vessels, they cannot be removed. Therefore the only option that the body has to wind back the blood pressure is to remove some plasma. If you think back to our earlier discussion about ratios, we showed that if the amount of red cells remains the same but plasma is reduced, it will increase that ratio as reflected in the haematocrit measure.
So to answer your question, although transfusing whole blood is invisible to detection in the short-term, within a couple of hours the body has removed some plasma and the increase in red cells becomes evident via blood tests.
AS: So if you wanted to mask transfusions, you’d transfuse rbc’s when needed, and transfuse plasma just before a test?
MA: The mindset I bring when contemplating professional road cycling is that, first of all, there are only a handful riders who deviously ramp up their doping with the sole intent of thwarting their competitors. I think there have been examples of that in the past, but thankfully that era seems to have retired recently from cycling. But obviously more than just a handful of riders dope. My sense is that there are many riders who feel sceptical about a system that has failed them, and/or who believe that antidoping is incapable of weeding out the cheats. I believe therefore that the majority of dopers do so because they want to stay in professional cycling, or do not want to be left behind by the devious cheats, rather than doping so that they can win themselves. I realise that is a fine distinction I am drawing. Let me be clear, that here I am contemplating the ‘motivation’, not the ‘act’, of doping. I do not excuse doping for one second, but I can at the same time comprehend and empathise with the situation that leads many riders down the path to doping.
And I think in that scenario, for that majority of riders who dope to keep up, their main concern is not to be the odd one out who gets caught. Of course they seek to derive a performance benefit, but it’s of secondary concern.
So to address your question - masking the use of a prior transfusion becomes the paramount concern nowadays. Which means that, because the excess plasma leaves the circulation within a couple of hours, it is necessary to hide the elevated ratio each time they provide a blood test. It is an unfortunate reality that Passport testers during the Tour have only limited opportunities to access teams, and riders can be pretty confident of predicting when Passport tests will be conducted - for example on the morning of rest days. This translates to a situation where, regardless when the red cells had been reinfused, a rider seeking to mask doping would be motivated to infuse plasma shortly before they predict they will be required to provide a Passport sample.
AS: Once the Biological Passport program started, this type of masking was no longer sufficient. Let’s get into reticulocytes and their role in the Bio Passport.
MA: Well, here I’d like to once again acknowledge Floyd Landis for enhancing my understanding of what and how pro riders dope. It was Floyd who told me how they had access to a transportable blood analyser that followed them around and allowed the riders to constantly monitor their reticulocyte levels. Whereas I’d anticipated some degree of self-monitoring, it had actually entered the peloton many years before I had ever imagined! So by the time the Passport came around in 2007-8, there was a lot of accrued knowledge about how to manipulate reticulocyte levels.
The way I look at this is to split masking into two separate activities, one for haemoglobin and one for reticulocytes. Just to clarify those two terms for your readers, nowadays in the antidoping realm, haematocrit has been replaced by haemoglobin because it can be measured more reliably. Haemoglobin itself is the protein bound up inside the red cell which carries the oxygen molecules, so just like haematocrit the haemoglobin value reflects the amount of red cells in circulation. And in order to explain reticulocytes, its necessary to appreciate that when red blood cells are first released from the bone marrow they are not fully mature, and so for the first 24 hours or so they are termed reticulocytes but then transition into mature red cells.
Those differences are quite subtle, but they are very important to antidoping because the number of reticulocytes provides a very good insight into how active the bone marrow has been during the previous 24 hour period. To put it simply, when you stimulate the bone marrow you find more reticulocytes, and when the bone marrow is less active you find fewer reticulocytes in the bloodstream.
Injecting EPO will stimulate the bone marrow, and thus a tell-tale signature of EPO use are higher than normal reticulocyte levels. Conversely, when you stop EPO injections the body will recognise that there are too many red cells in circulation, and responds to this excess by suppressing bone marrow activity and thus you find fewer reticulocytes. If you can grasp that concept, its pretty easy to extend that out to what you would expect to find associated with blood transfusions. Initially, when the blood is withdrawn for storage, the body recognises that the red cells have been depleted and thus stimulates the bone marrow to produce more and to replenish what has been taken out, and so as a consequence reticulocyte levels go up. When the blood is eventually reinfused, the body recognises the excess of red cells and suppresses bone marrow activity, thus causing a decrease in reticulocyte levels.
Because the Passport looks at haemoglobin levels and reticulocytes, it becomes necessary to mask both. You need different strategies to mask them. So for example, whereas flooding the circulation with plasma will hide an excess of red cells, this has no effect whatsoever on reticulocytes because they are measured as a percentage which is therefore immune to changes in concentration. Instead, their levels are dictated by bone marrow activity, which is driven by erythropoietin levels in the bloodstream. When you withdraw blood, the body responds by increasing erythropoietin which causes the reticulocyte levels to spike up. When you reinfuse blood, the erythropoietin levels decrease and after some days lag the reticulocyte levels drop.
So the mobile lab which Floyd described was only one part of the puzzle. Its not enough to know that your reticulocytes have dropped suspiciously, you must be able to do something about it or else risk being flagged by the Passport. And whereas the intervention for red cells is plasma, the intervention for reticulocytes is microdoses of EPO. Those injections are carefully timed and titrated to ensure that the reticulocyte levels are neither too high nor too low.
Whereas this might sound a bit daunting to a novice, in fact it is relatively simple for someone with access to a blood analyser and the freedom to experiment with different microdosages to acquire the knowledge to sustain a masking protocol. But the tricky bit comes when you try and replicate the rider’s ‘natural’ level. Its one thing to avoid high peaks and low troughs, but something entirely different to tweak it just right that you replicate your natural level.
That’s an Achilles Heel that us experts have utilised when reviewing blood passports. There are tell-tale signatures that we’ve come to suspect are caused by microdose regimens. Please don’t expect me to reveal what they are, because I’d like to think that one day that information can be used strategically. However in the meantime it’s frustrating because we see a suspicious signature, but its not easy to persuade authorities to prosecute an athlete when there are no peaks and troughs!
AS: It’s interesting to note that EPO has returned to the scene, but now as a masking agent rather than a performance enhancer.
MA: You know, its convenient for us in antidoping to bracket things together, and to glibly say that ‘transfusions are in, microdosing is in, recovery not performance is the focus’. I think its important to sometimes step back a bit and realise that these are pretty broad generalisations, used mostly to guide us rather than pretending that we know exactly what athletes are doing and how!
I think what each athlete does is going to be determined by their access to different options, their willingness to risk detection, and of course unforeseen circumstances such as blood bags being lost or destroyed with no option to replace them, injection doses being mixed up or mistakes being made with what concentration of EPO is injected. It’s a delusion to believe that these things can be controlled tightly at all times, especially when the athlete must operate covertly yet cross international borders for races, for example.
I found it interesting to read the Puerto documents where phone taps revealed that sometimes the doctors couldn’t get access to the exact product they needed so they substituted in other stuff. I know from my own research studies that it’s just not possible to tritrate EPO injections precisely, so this perception that its possible to minutely control your reticulocytes via microdosing is just not reality. You can certainly get close, and as I said before that’s relatively easy to do, but that’s different to trying to dial in a level to say be within 0.1% of your target. But yes, in general terms, whereas the early 2000’s most of us considered that EPO was used to boost performance, nowadays we believe that EPO is an important masking tool whilst transfusions provide the ‘engine’ boost, if you like.
The Contador Case and the Transfusion Theory
AS: So now we’re more or less up to date on the latest on blood doping. Even though the Contador case was specifically about Clenbuterol, you were brought in as WADA’s expert witness because they had a theory that the Clenbuterol entered his system as a result of blood doping?
MA: Depending on how you choose to look at the Contador case, it was either drop dead simple to resolve, or impossible to address. Quite honestly I sometimes waver within those two extremes myself. But at the end of the day, the presence of clenbuterol had been established, and there was no proof available to establish how it entered Contador’s system. From that perspective, it seems quite straightforward that it would lead to a two year sanction.
I think the enormous volume of public debate muddied the waters. As well, Contador made a persuasive case in the court of public opinion that unless WADA could establish how it entered his system, the only reasonable thing to do was to accept his proposal that it came via a steak. What concerns me about that argument is why Contador should be treated any differently to any other athlete, for whom the reverse has always been true. As succinctly summarised in paragraph 265 of the ruling, the athlete has to establish how the prohibited substance entered their system, rather than the other way around. I don’t think the number of races you’ve won, or whether or not the Prime Minister is in your corner, should change how your case is adjudicated.
When the first hearing took place in Spain, that RFEC panel was only presented with Contador’s evidence that the clenbuterol had come from a steak, and no other alternatives were put before it. The RFEC concluded that on the evidence placed before it, the clenbuterol came from steak. When the UCI and WADA appealed that decision, they argued that the clenbuterol might not have come from a steak but instead from, for example, a transfusion or a contaminated supplement. As I understand it, the CAS panel needed to decide whether the evidence put before it indicated that it was more likely that it came from steak than from any other possibility. My role at the hearing was to help the panel evaluate, based on the evidence available, whether a transfusion could have taken place. Experts from WADA attended the hearing to help the panel understand whether, if a transfusion had taken place, it could have led to the clenbuterol concentrations found in Contador’s urine.
Although that might seem like the same argument made twice, in fact there is an important distinction. Both steps would be necessary to explain clenbuterol at the concentrations found. Each argument was considered separately, with me being responsible for helping the panel evaluate the first but not the second argument, and vice versa for WADA’s experts. It is therefore not surprising that Contador’s legal team sought to rebut each of those arguments separately, and they brought different arguments to bear in each case.
AS: So you were called to evaluate Contador’s passport profile. How were you able to establish his ‘normal’ values, considering that he’s suspected of blood doping?
MA: First I need to clarify a misconception - when you say I was there to evaluate his passport profile, in fact this was not an Athlete Passport case. I realise the confusion has been propogated by the panel’s use of the abbreviation ‘ABP’, which they mistakenly apply whether talking about actual Athlete Biological Passport data (which is the correct use of ‘ABP’) or blood data in general. I was there to evaluate his blood results, period. Whether those data came from his passport profile, or somewhere else, was not relevant provided that the data were reliable. As you can see in paragraph 351, which describes the blood data I based my opinion on, I incorporated data from as far back as 2005 which predates the beginning of WADA’s ABP.
Because Contador had previously applied to the UCI for an exemption for high haematocrit, during 2006 he had spent several days at the Lausanne antidoping laboratory who collected some very carefully controlled blood tests. Those data were obviously considered to be reliable - Contador had been granted an exemption based on the validity of those data thus it would be very difficult for him to turn around and suggest those data could not be relied upon. I used those data to establish to my satisfaction what his natural values for haemoglobin and reticulocytes were.
AS: Based on that baseline data, what were you able to establish about Contador's '10 Tour test data?
MA: His 2010 Tour data definitely attracted my attention. As described in the panel’s ruling, my testimony was that his reticulocytes were higher than I would have expected. Not just a single result, but every result during that race was equal or above the carefully collected results he'd provided to the Lausanne lab in 2006.
At first I thought this could have been due to the analyser used during that Tour. If the analyser had been reporting results slightly high, that would have explained why Contador's values were higher than expected. However I cross-checked the results of other riders, and it was not due to the instrument.
My second thought was that perhaps this signature was just typical of how Contador's body responded to the competition of a major stage race. Again I was able to cross-check this with his other results during previous victories at major Tours, and that did not explain the 2010 Tour values either. In fact his 2010 Tour results were higher than any other value he'd provided during any of his previous major victories.
The inescapable conclusion was that his reticulocyte results were unusual for him. In fact, neither his own blood expert nor myself could conceive of any naturally-induced circumstance that could explain his elevated reticulocyte results during the Tour. I was surprised to read paragraph 359 of the ruling, which in fairness only refers to written submissions that had preceded my opportunity to address questions to Contador’s expert. However what that paragraph does not reflect, which the court transcript can establish, was that during the hearing itself I categorically asked Contador’s expert whether he had any natural explanation for Contador’s reticulocytes during the 2010 Tour, and he did not. Both of us also agreed that some forms of doping, for example a microdose EPO regime, could yield higher-than-expected reticulocytes.
During the hearing, I helped the panel to objectively evaluate for themselves just how unusual Contador's reticulocyte results were during the 2010 Tour. They refer to this in paragraph 368. I presented a probabilistic evaluation which replaced my subjective opinion with mathematical odds. The calculation found that the probability of Contador's four highest results occurring at a single race was less than 1 in 7000. However, the panel concluded that probability calculations, which had been scrutinised by two colleagues each with a PhD in statistics, were not a sufficiently secure method of establishing inconsistencies.
As I explained earlier, I regard haemoglobin and reticulocytes as separate entities and when I examined Contador's haemoglobin values during the 2010 Tour I found his results to be more or less what I would have expected. However since I already had his data from previous major victories in hand, I went ahead and compared his 2010 haemoglobin results with those other races and I was concerned that I was not able to see consistency between races. In very general terms, you'd expect the same rider to show the same response each race. There is a dilution of the haemoglobin as the cumulative impact of multiple days of stage racing leads to an influx of water into the circulation. Whereas I would have been reassured to find the same characteristic signature in Contador during every one of his victories, I did not.
AS: From there, were you able to advance a transfusion theory?
MA: WADA's legal team had asked me, as their expert, to assist the panel evaluate the possibility that Contador had used blood transfusions during the 2010 Tour. Obviously, the thrust of that exercise was to ascertain whether a transfusion could have led to the clenbuterol found in Contador's urine sample. To my mind, there were three separate pieces of evidence that a theory needed to take into account. First, a sharp peak in plasticiser residues had been found in his urine sample on the Tuesday evening that was not present on Monday. Second, clenbuterol had been detected in his urine on the evening of Wednesday's rest day. Third, his reticulocyte results during that Tour were unusually elevated.
As I set out in my opinion to the CAS panel, which is summarised in paragraph 336 of the ruling, those facts are consistent with the reinfusion of blood at some time between Monday and Tuesday evening, the infusion of clenbuterol-contaminated plasma on Wednesday in an effort to mask the excess of red cells from the Passport blood test which was administered that morning, together with a microdose masking strategy to mask the suppression of reticulocytes that would otherwise betray the use of blood transfusions. As I explained before, my role was not to establish whether Contador had blood doped, but instead I was required to explain for the panel's benefit whether in my opinion it was possible that a transfusion had occurred.
I realise that readers might regard that as being pedantic, that one necessarily follows the other. But it must be remembered that WADA's appeal was against the original RFEC decision to exonerate Contador for the presence of clenbuterol, therefore the CAS appeal was only concerned with how the clenbuterol came to be in his urine. The appeal was not about convicting Contador of blood doping, and indeed CAS rules specifically prevented WADA from pursuing this because it was not the basis on which the original case was made. Perhaps it helps to think of it this way: you can only appeal the first ruling in front of CAS, you cannot use the CAS hearing to impose a separate ban.
I read with interest paragraph 453 of the ruling, where the panel noted that neither UCI nor WADA were apparently confident enough to bring a doping charge based on the allegation of a blood transfusion. I was surprised because the panel’s note does not go on to clarify that the adverse analytical finding for clenbuterol automatically precipitated an anti-doping rule violation. The phthalate peaks and blood data, which subsequently underpinned WADA’s transfusion theory, were only realised after the fact and thus could not have been foreseen on 24 August 2010 when UCI informed Contador of the adverse analytical finding for clenbuterol. I’m not an expert on the WADA Code, but it seems to me that once the clenbuterol-related process had commenced, it was not possible for UCI and WADA to unwind that adverse analytical finding and instead instigate a blood transfusion violation. So in my opinion, under those circumstances, not pursuing a transfusion violation is no indication whatsoever of the merit of the theory.
AS: So to be clear, red blood cells were transfused on Monday or Tuesday. Plasticisers were introduced to Contador’s bloodstream at that time. Plasma, stored in a non-plasticised bag, was infused some time before Wednesday to mask the first transfusion, and Clenbuterol enters his system at that time. His blood values indicate that he was on a blood doping and masking regimen. Was the one day gap something Contador’s lawyers sought to create doubt? Was that where they took advantage of the fact that WADA was using two separate arguments to advance the transfusion theory?
MA: First of all, let me reiterate that I did not say Contador transfused. I said that its possible that he transfused, and I presented the panel with one coherent scenario, that was consistent with the facts at hand, to demonstrate that possibility. It all comes back to the fact that this was an appeal against the RFEC decision to exonerate Contador for presence of clenbuterol, as opposed to a hearing to sanction him for blood transfusion.
Having said that, yes, your summation is an accurate portrayal of the scenario I presented to the panel.
Recall that Contador did not have the necessary proof to establish the origin of the clenbuterol, therefore in the absence of proof his fallback argument was essentially that it must have been steak because there was no other possible source of the clenbuterol. He sought to persuade the panel that there was no other possibility. Subsequently, he needed to rebut the possibility that a transfusion could have occurred, otherwise his argument would have collapsed.
A central pillar of his rebuttal was the one day gap between the first appearance of plasticisers and clenbuterol. He claimed that were a plasma transfusion to have taken place Wednesday it would have caused a second peak in plasticisers. Paragraph 399 sets out Contador’s defence, specifically his expert claimed that DEHP metabolites should have been detectable along with the clenbuterol. As I mentioned earlier, that is simply nonsense, because plasma is preferentially stored in non-DEHP bags and therefore no plasticisers would be introduced from plasma stored in that type of bag. Anyone who does a wikipedia search using ‘DEHP + free’ as search terms can see for themselves that not only are DEHP-free alternatives available, but for the past decade the FDA in the United States have been recommending DEHP-free alternatives in medical devices.
Ashenden Barred from Testifying
AS: Was that some of what you were prevented from testifying to, and was that information critical in allowing the arbitration panel to formulate its final ruling?
MA: I would refer you to paragraphs 147 and 148 of the CAS ruling, which describes both UCI and WADA’s views on how the hearing was conducted.
Among other things, I was prevented from testifying about non-DEHP bags. It was a surreal situation to be confronted with, because it was such a simple issue to resolve completely and without room for doubt in about 30 seconds, yet the arguments to prevent me from confirming that non-DEHP bags existed took hours. I recognise that arbitration hearings must be conducted in accordance with legal rules, but that does not remedy the frustration I felt when I was categorically ordered by the chairman not to answer the question, but instead the question was directed to the person sitting right next to me who did not know the answer.
The upshot was what you read in paragraph 409 - the Panel took into account the evidence and arguments presented by the parties, but because I could not present definitive evidence about the existence of non-DEHP bags the panel instead had to rely on the answers provided by Contador’s experts.
Likewise, I was prevented from talking about the volume of plasma that would be required to successfully mask haemoglobin levels. Calculations had been made about the volume of plasma that would have had to be infused to yield the amount of clenbuterol found in Contador’s urine. Contador’s expert had raised doubt whether those volumes could be safely infused in humans. By extension, this cast doubt on my transfusion theory. Their expert was just plain wrong, but I was not allowed to point this out to the panel because I had not mentioned it during my written submission. In simple terms, because I had not known six months earlier when I submitted my written opinion that their expert would raise such a spurious point during the hearing, I was not allowed to explain to the panel that his evidence was wrong.
AS: Were you given any reason for you being silenced in cross examinations? Do you see it as a clear cut instance of bias, and was it Barak that prevented you from testifying?
MA: To be clear, whatever my view on how the matter was conducted, I’m not alleging bias. Ultimate responsibility for me not being able to testify on those points rests with Contador, whose lawyers raised the objection. You can understand his lawyers would be willing to do anything and everything to help get their guy off, even if it meant fighting against the submission of important evidence merely on a technicality. However, it was surprising to me that the Spanish cycling federation agreed that I should not be allowed to answer a question that would help clarify whether Contador could have used a transfusion.
The basis for this objection at the November hearing was that I had not dealt with the issues when I submitted my written opinion the previous April. Contador’s lawyers argued that I had had an opportunity to comment on DEHP-free bags when WADA made a second written submission shortly before the hearing, and because I hadn’t taken that opportunity I should be barred from testifying about it at the hearing.
What puzzled me, and the WADA lawyers I might add, with that argument was that both parties had agreed in advance that WADA’s submission just before the hearing was to deal only with the pharmacokinetics of clenbuterol and nothing else. As you can see in paragraph 133 of the ruling, that additional submission had nothing to do with me, and I had no role in preparing it. To put it simply, if I had submitted an opinion on non-DEHP bags during the second written submission it would have contravened the parties agreement that strictly limited the scope of that submission. I was damned if I did, damned if I didn’t.
Therefore Barak’s role in this was to adjudicate Contador’s protest, and whilst it’s true he was chairman it’s also necessary to note that he was only one of three voices on the panel. Ultimately, the panel supported Contador’s protest and then it fell to the chairman, who controlled the proceedings during the hearing itself, to enforce that ruling. That’s where it came down to him ordering me not to answer the question.
AS: By silencing you, was the panel then able to advance the supplement theory?
MA: I don’t think that one followed the other as you seem to suggest. I considered Contador’s protest to be nothing more than a legal strategy. The effect it had was to ensure that their chief argument rebutting transfusion was not held up to close scrutiny. Now I have moral objections to that course of events, and based on WADA’s willingness to consider an appeal to the Swiss courts there seems to be legal objections as well. But I don’t see it as being the avenue by which the supplement theory was advanced.
Since the ruling was announced, I have read bits and pieces of the media and noted that Contador has championed the panel’s ruling as evidence to reassure the public that he did not knowingly dope. (Editor's note: Contador just did so again today.) Before the ruling was announced, he had referred to supplement contamination as a preposterous speculation. I can’t help but reflect on paragraph 467 of the ruling which notes that Contador’s testimony was that he did not take any supplements on the Tuesday or Wednesday. So according to his sworn testimony it was an impossibility that the clenbuterol came from a supplement.
Therefore, it seems to me, that in order for the panel’s finding to be correct Contador must not have told the truth about taking a supplement. But that brings with it an entirely new set of contradictions, which to my mind make it implausible that Contador lied. One must question, as did his lawyers during their submissions, how on earth he knew which supplement not to disclose. Companies don’t label their products as being contaminated, so I just cannot grasp how he could have known which product to lie about. It just does not add up.
In my opinion, either the panel’s finding that the contamination came from a supplement was wrong, or Contador had not been truthful during the hearing. I would have thought that either of those scenarios falls well short of something Contador would want to be championing to the public.
AS: Ultimately, Contador was sanctioned for two years, though not for blood doping. And the ruling left the door open for him to proclaim himself the victim of a tainted supplement. As someone who works in anti doping, what would it have meant to convict the sport's biggest star for blood doping? What could it have meant for the sport to have those practices exposed?
MA: There are a lot of dimensions to that question... First of all, I need to again come back to my earlier point that the hearing was not about convicting him of transfusion. So regardless of the outcome, he would not have been found to have committed a blood doping violation. But having said that, the ruling did find that it was very unlikely that Contador transfused, and not surprisingly the public will tend to rely on that conclusion as the truth.
However I’m somewhat cynical today about the capacity of arbitrations to find the truth. The general public and media seem to treat the process with the same reverence as a criminal appeal in front of a panel of judges. That’s just not the case - CAS panels are typically comprised of lawyers, not judges. In general terms, and in my limited experience, those lawyers do an excellent job dealing with highly complex scientific matters. I’m forever amazed at their capacity to absorb an enormous amount of information. But I just don’t agree with the general sentiment that an arbitration automatically finds the truth. In reality, they rule upon the evidence put before them, and that evidence is governed by rules of law, and those rules of law can introduce all sorts of anomalies that a lay person like me finds bewildering, not to mention unsettling.
Even the ruling itself seems to say as much, where paragraph 487 clearly states that the panel’s finding does not mean that they were convinced beyond reasonable doubt that a contaminated supplement was actually ingested. So I feel it is more accurate to conclude that arbitrations rule on the evidence, rather than find the truth, and based on what evidence was put before them in November the CAS concluded that a transfusion was unlikely to have occurred.
With regard to your second point, I see no difference whatsoever sanctioning a second tier rider or a multiple Tour champion, except of course for the publicity the two cases would receive. I think publicising doping infractions are vital - not just to ensure the public remain aware of the need for ongoing antidoping vigilance, but also to keep the sport itself on their toes. The worst thing that could happen would be for doping to fall off the media radar, which would allow sports to lapse into a lackadaisical attitude, relax their antidoping programs, which in turn would eventually allow cheats virtually unfettered access to doping. Because the Contador case received so much media attention, whether or not he was convicted really became immaterial in the context of publicity, and so the decision itself had less gravity than normal.
As far as exposing the practices, I don’t think any of your readers would have any doubt whatsoever that blood transfusions take place in professional cycling. The facts are the facts, and rather than blindly accept athlete’s explanations and even CAS verdicts, I’d like to think the media and public will remain vigilant and even have a healthy cynicism in the future and decide for themselves whether explanations put before them are plausible.
Ashenden resigns from Passport Program
AS: I understand that you'll no longer be on the panel for the Biological Passport Program. Can you explain your reasons for resigning your position?
MA: That’s correct insofar as I will not be an expert on Lausanne’s Athlete Passport Management Unit (APMU). I do intend however to remain a member of WADA’s Expert Panel. As well, Dan Eichner at the Salt Lake City lab has also convened their own APMU with a truly formidable panel of experts, and I’ve accepted their offer to participate on that panel. I'm enthusiastic about the prospects for that to grow and establish itself in the future.
From the beginning of 2012, Lausanne have been managing cycling’s Passport program, so it means I will not be interpreting rider’s blood profiles any longer. The reason I have resigned comes down to an issue of freedom of speech.
In their terms of agreement, Lausanne inserted an additional confidentiality clause that precluded an expert from making any public comment or giving any personal opinion on any aspect of their role as an expert on the panel. Not just now, but for eight years after the expert leaves the panel. In my opinion such a clause is ludicrous. Perhaps an employer can insist that their employee signs such a contract, but us experts are not employed by the APMU, and in fact their contract states that we must at all times exercise the greatest care to ensure that we do not become dependent to the APMU. In other words, they see independence as being of paramount importance. So it comes down to the APMU squashing the freedom of speech of a person who by their own charge is completely independent of them, and I refuse to be a part of that.
Of course, I am willing to sign confidentiality clauses which preclude me from sharing any information I encounter in my role as an expert, and that is precisely the clause and contract I signed to be on WADA’s Expert Panel. However I am not willing to go further and allow the APMU to censor the expression of my personal opinions about non-confidential matters.
In my opinion, that clause can only serve one purpose, which is to muzzle us experts from giving interviews to the media. I think it’s important to have transparency and accountability in all facets of sport and antidoping. As meagre as our role might be, we experts are an independent entity within the Passport program which means we can serve as a canary in the mineshaft, a crosscheck. As I said earlier, I consider the media’s role to be pivotal to maintain antidoping vigilance, and unless the media has access to expert interviews that vein of information will be strangled and eventually expire. We understand the Passport, how it works, and what it can and cannot do. Our opinion and contribution to media is vital. I cannot condone that role being snuffed out, thus I have refused Lausanne’s offer to be a part of their expert panel.
I sought to find a compromise with Lausanne but with no success. That was certainly disappointing, but I find it unconscionable that an antidoping entity would seek to impose an omerta on us experts. Particularly where cycling is concerned, because we have struggled for years to break the rider’s omerta, and asked riders to speak out about their peers who are cheating the system. Yet Lausanne takes that omerta one step further and prevents its experts from speaking out not just via an unspoken code but also reinforced with a legal contract.
I am distressed that this has led to me no longer being involved in cycling. I have been involved in their program since day one when Anne Gripper first sought out my participation. The UCI have certainly broken new territory, and at the same time there is still a long way to go. However at the end of the day, I seek to live by my principles, and I intend to do so not just now but in the future as well.