WADA and the Steak

The latest development in the world of doping in sport appears to be some doubt on behalf of the World Anti Doping Agency about clenbuterol. Clenbuterol is, of course, at the centre of the current long-running Alberto Contador saga – the 2010 Tour de France winner failed a test for a very, very small quantity of the asthma drug during last year’s Tour, and claimed, rather memorably, that it was from a contaminated steak he’d eaten. Specifically, a steak from Spain, where clenbuterol is, he clams, used (illicitly) in livestock farming.

WADA seems recently to have admitted the possibility of this sort of contamination, which is going to have knock-on effects on the Court of Arbitration for Sport hearing on the Contador case that’s scheduled for after this year’s Tour.

The real issue is not what drugs are banned, what quantities they’re banned it, where they come from, or even what their effects are.

The real issue is the strict liability element of current drug-enforcement. As things stand, if something banned is found in your system, that’s it. You’re guilty. Certain cases, on a wildly inconsistent basis, seem to find gaps in this, but that’s the principle, and the only real flexibility is the punishment handed down.

Now, if this were a criminal matter, that’s not how it would work. While strict liability does exist for some criminal offences, they’re rare, and doping in sport would not be one of them. Criminal offences require not only a ‘guilty act’, but a ‘guilty mind’. In doping, you’d have to show that a substance was taken, and then you’d have to show that it was taken knowingly, with the intention of improving performance.

The reason doping regulations don’t follow the criminal model is simply one of practicality. It would be very difficult to prove the mental elements of the offence. Strict liability increases the conviction rate. But it does it at the cost of convicting some athletes who are innocent in all the respects that matter to justice. Alain Baxter, the skier, is the classic example. He took an over-the-counter cold remedy that had different ingredients in North America from those that he’d carefully checked in the UK version, and which had no influence on his performance anyway. Still guilty.

WADA are now in the deeply uncomfortable position of pursuing Contador, while at the same time having raised doubts about the mental elements of his offence. In effect, they’ve come close to admitting he might be right after all, while at the same time maintaining a set of regulations that in essence say that even if he’s right, it doesn’t matter.

The Court of Arbitration is now in an impossible position. They can’t find him guilty, but they can’t let him off (assuming they accept the evidence of the dope test) without essentially taking WADA’s decision for them.

I’m confident this is going to run and run, and the consequences in the fight against doping in sport are going to be significant.

3 Responses to “WADA and the Steak”

  1. Grumpy Bob says:

    For me, the real problem in Contador’s case is that the amount of clenbuterol found (actually, I guess concentration), was very low, and far below the testing sensitivity required for accreditation of the testing lab. So, one might have two athletes with the same clenbuterol concentration in their system, but because Contador’s sample went to a lab with very sensitive equipment, his sample returns a positive but the second athlete’s sample might come back as negative through a second testing lab which doesn’t offer the same degree of sensitivity.

    I’ve no idea whether Contador is guilty of doping, but I think that a sensible set of regulations would stipulate (a) what level of clenbuterol (for example) a testing lab must be able to detect, and (b) that this level is the point at which a doping infraction is deemed to have occurred.

    Robert

  2. 64fixed says:

    For me, the real problem is that cheating in any sport is considered acceptable at some level and de rigeur at others. If you want to win - and you have to win to maintain your funding - you are almost inexorably pushed towards cheating.

    And by cheating I don’t necessarily mean wilful breaking of written rules. Steve Redgrave talks in his autobiography about bouncing the boat up and down to disturb the water for opponents… whilst he sees himself as a sportsman, like it or not, that’s deliberately interfering with the opposition’s performance and is cheating.

    Money has a lot to answer for. We are unlikely to return to halcyon days where sport can fulfil the first definition in the dictionary;
    ‘an individual or group activity pursued for exercise or pleasure, often involving the testing of physical capabilities and taking the form of a competitive game such as football, tennis, etc’ as there’s too much at steak (boom boom!)

  3. Gadi says:

    Dear Michael
    At long last some ‘Voice of reason’.
    You’ve put it simple and clear .
    The most important idea (for me) is the impossible situation that WADA, as the CAS, is in to, and the exact reason for this case to go on and on .
    Gadi