Questions posed on a range of issues connected to case
With the Alberto Contador CAS appeal decision now expected to come next Monday, a conclusion should finally be drawn in what has been a long, protracted and confusing issue. The case has been characterised by long delays and rumours, claims of contaminated food by Contador’s lawyers, suggestions that WADA may have sought to explore the possibility of transfusions and, more recently, media reports that WADA may have been unhappy with how the appeal was handled.
More details will emerge once the ruling is made but, for now, VeloNation has put questions to two experts in sports law in order to determine their impressions of what has happened thus far. They give their thoughts about Contador’s defence, reports that WADA star witness Michael Ashenden was blocked from speaking, questions about the appointment of the CAS panel and possible appeals after the final decision.
The first is Gregory Ioannidis, a sports lawyer and senior lecturer in Sports Law at Buckingham. He makes regular appearances before Court of Arbitration for Sport in Lausanne, Switzerland, and FIFA’s Dispute Resolution Chamber, and represented Greek sprinters Konstandinos Kenteris and Katerina Thanou.
The second is the independent Dutch sports lawyer Maarten Vrolijk. He is currently handling two doping-related cases pending before the European Court of Human rights, has represented a range of sportspeople in the past and was also editor of a sports law magazine for a decade.
VeloNation: What’s your reading of the Alberto Contador case? Do you believe it is food contamination as claimed, or do you consider it possible that there are doping connections?
Gregory Ioannidis: I cannot be certain. That’s why it is important to have all the evidence available before the Panel so its probity could be fully and properly analysed. The use of expert witnesses, therefore, may prove beneficial and certainly not prejudicial.
VN: In relation to the AP story released a few weeks ago, did you find it unusual that a key witness such as Michael Ashenden was apparently not allowed to testify, particularly given his background with the UCI’s biological passport?
GI: Slightly unusual yes, but the admissibility of evidence and the testimony of an expert witness would depend on a number of different considerations. If this particular expert witness was in the list of witness, when the Court requested such lists and/or if his testimony goes to the probity of the evidence, I see no reason for his exclusion.
VN: Although WADA subsequently denied making a specific complaint at the hearing, an AP article published mid-January raised questions about the actions of the panel, and specifically stated that CAS Panel chairman Efraim Barak had attended functions in Spain prior to the appeal. What are your thoughts on this?
GI: I appeared before this specific judge in the past before CAS but I cannot produce comments. If the functions were not connected to the appeal, there is no reason to challenge him. It goes without saying that judges have to be seen to be fair, but such evidence could not be considered suspicious.
VN: In 1992 Barak became a member of the Rex Sport Associacion de Asesores del Deporte, a Spanish legal entity with a main branch in Barcelona. He is also professor at the Master degree program in International Sport Law at Madrid’s Instituto de Estudios Bursátiles and Instituto Superior de Derecho y Economía, thus spending time in the country and – potentially – around those involved with Spanish sport.
In relation to the need for neutrality, do you see any grounds for concern here?
GI: I personally would not have any grounds for concern. If anything, the argument that may have good knowledge of people and ways in Spain, indicates that he may be the appropriate judge to rule on the matter. In any event, there are 3 judges on the Panel so there may be an element of a check.
VN: If WADA was indeed dissatisfied that its right to be heard was not recognised, do you believe it will appeal to the Swiss Federal Tribunal if it loses the CAS case? Could such an appeal change anything?
GI: The Panel itself could hear legal submissions on the matter. It does not have to go to the Federal Court. If WADA were not happy with the judge, they could have challenged him. It happened before, in the matter of IAAF v Kenteris & Thanou; the CAS changed the President of the Panel after a challenge we produced on behalf of the Greek sprinters. If there are valid reasons for his exclusion, the judge in question may feel he needs to resign so the transparency of the process could be safeguarded.
VN: Finally, what do you expect to happen?
GI: I would never predict the outcome of any case. It would be arrogant and wrong for the client.
—–
VeloNation: First off, what is your impression of the Contador case and the defence of food contamination?
Maarten Vrolijk: A few years ago I dealt with a case with a young athlete who tested positive for stanozolol, the same substance that Ben Johnson had in his system. He was a young guy and said he didn’t know what it was; I believed it. It turned out that his trainer gave him some pills and it could’ve been that there was some contamination. On the other hand, he had also trained in Morocco, and Morocco is known for problems with Clenbuterol, stanozolol and other things [in food].
The panel said to me that it would like to be able to believe me that it was accidental, but how could I prove that the food he was eating a few weeks ago was contaminated? Similarly with the Contador case, even though they asked the butcher who sold the meat to attend, I find it highly unlikely that they can prove it.
The problem is that strict liability applies; unlike in criminal cases, you are first considered guilty and you have to prove the opposite…that is very difficult.
VN: An AP story recently said that CAS blocked one of WADA’s chief witnesses, Michael Ashenden, from speaking. He wasn’t allowed to be questioned by WADA, but was apparently allowed to question one of Contador’s witnesses, anti-doping scientist Paul Scott. Why would he had been stopped from speaking?
MV: As regards that aspect, I’m not sure what happened during the session. When he is presented, the first question from the panel will be ‘please state your name and what your role is.’ At that point one of Contador’s lawyers may have said ‘we’d like to protest because we think that this man can’t contribute to the issues stated now’.
It’s common in European law that a judge at a certain point will say ‘ok, you’d like to present some evidence, you’d like to present an expert, but what can this expert contribute to your statement?’ That’s quite normal. What puzzles me is that they apparently said that while he was not allowed to speak himself, that he was allowed to question the expert of the other party. I find that quite unusual
VN: There’s been suggestions that WADA could appeal to the Swiss Federal Court, saying that their right to be heard has not been respected. What’s your thoughts on this?
MV: If Contador wins, WADA will ask why Michael Ashenden was not allowed. That’s a crucial question and, as a lawyer, that is one of the main points I would look into.
Even if you have a case without any possibility to win it, if you can prove that you made a statement or provided evidence but that there was no answer of the court to it, then the Swiss Federal court can say that you have a right to be heard and this right has been violated.
VN: But if CAS had given a reason [to block Michael Ashenden], even if the reason isn’t logical to WADA, does that then prevent WADA from going to the Swiss Federal court?
MV: Well, the point is that Swiss Federal court is very, very strict. They’d ask the following question: ‘when you handed in some information or asked your witness to be heard, did CAS respond to it? Did CAS state in the future award say ‘ok, we’ve seen it, we’ve judged it and we don’t allow this?’ If they do that, then I think that’s enough.
Basically, it is not crucial for the Swiss Federal court to determine if the decision of CAS is correct…what is crucial is if a question hasn’t been answered. And I think that’s the distinction we have to make. When you have a right to be heard, the Swiss law is ‘has an answer been given at all?’
If the question was ignored, then the right is violated. If the question has been answered, even in a ridiculous way, well, the question has been answered so there’s no violation.
VN: Do you find it difficult to understand why they would admit a polygraph test, as has been reported, but yet deny Michael Ashenden?
MV: I can’t understand why WADA or UCI would allow this [a polygraph test]. I would have protested against it. I would say ‘ok, you have certain kind of evidence…certain kinds of evidence are allowed and certain kind of evidence are not allowed.’ But what does it prove? It’s not a scientific proof, at least not in European countries, I believe.
VN: The AP article stated that the CAS panel chairman Efraim Barak had gone to Madrid a couple of times for a sport conference, and raises questions about that. But what is perhaps more interesting is that he has been a member of Barcelona legal body for a long time and has given courses in two Madrid universities. Given his professional links to Spain, are there any grounds to question his appointment?
MV: To answer, let me tell you a story of a lawyer who had a previous case before CAS. He entered a court room with his client, an athlete who was accused of being doped, and a few minutes later an International Sports Federation arrived with its lawyer.
The hearing took place and was concluded after about two hours. They were talking outside and all of the sudden the client saw the lawyer of the Sports Federation going back into the courtroom, and taking a seat with other judges for the next case! So, the lawyer who was representing the Sports Federation was one of the judges in the second case of that day.
The athlete turned around and asked his lawyer ‘what is going on? They guy who was representing the Federation, my opponent, is now the judge? How can it be that somebody is behind the table [for one case] and in front of the table?’
And the reply to that is that it is a small world, there are very few international lawyers who specialise in sports law. When you have to pick a judge, you almost directly have to pick one of them out of the international sports lawyers who are well known. Because of that, it’s possible that a guy can be an attorney in one case and a judge in the second case.
This has been discussed before by CAS and the answer was quite clear. It was said that these are all professionals; they act professionally when they are lawyers with an athlete, and they are professional when they are acting as a judge, so there’s no conflict. I can understand that it’s highly confusing for an athlete, though.
In that case I am referring to, that was not considered a problem. So I don’t think the fact that Efraim Barak is from Argentina or speaks fluent Spanish is a problem.
VN: There was a leak of information and both WADA and the UCI distanced themselves from it. CAS later said that it was frustrated by the media attention and it delayed the final resolution as a result. Do you think the fact that the leak happened could influence the outcome?
MV: I don’t think so. When I look at CAS and the level of judges they have, the kind of expertise, they are very professional.
VN: Do you have an expectation about the final outcome and what will happen?
MV: It’s always very difficult to say. Contador has always said that the amount they found in his body is so limited that it couldn’t be caused by any doping. But how do prove that that amount have been caused by eating contaminated meat? How can you prove this?
I’d say it’s a 40% chance for Contador and 60% for WADA and the UCI. I think there’s a slight advantage for WADA and the UCI.
As this is such a high-profile case, I do think that if WADA and the UCI loses, that Contador will go all the way to have all the damages paid, all the legal fees, everything.