On the day the Court of Arbitration for Sport (CAS) handed down its decision on the Alberto Contador doping case, Cadel Evans – Australian Tour de France champion – was quoted in the cycling press repeating two of the institutional mantras of professional cycling.
The first mantra was one often employed by cycling’s governing body, the UCI, and by others such as Lance Armstrong, seven-time Tour de France winner:
“Cycling has done more than enough to show it’s doing the right things when it comes to the fight against drugs …
“Now it’s time for other sports to look to cycling and replicate what we do so the fight against drugs in sports can maybe be beaten one day across all sports.”
Evans was reported as saying he had followed the Contador case from afar and trusted the authorities to do their job: “I don’t know all that goes on behind there and what all the real facts are and so on … I go along and do my job and that’s up for the authorities to decide."
The other received wisdom repeated by Evans is the claim that the Contador case took too long and thus created uncertainty for the sport:
“It was a case that dragged on for so long I had no idea what was going on and what was going to happen. […] I just read the newspapers like the rest of us.”
Such a conclusion has even been repeated by academics in their commentary on the case on The Conversation.
As I have considered when discussing the Operación Puerto doping investigation in the past, this “need for speed” attitude has been deeply embedded in media coverage of the event. The rhetoric runs that Spanish justice was too slow and stood in the way of the certainty required for the sport and its sponsors.

The legal scholar Professor William E Scheuerman has written extensively on the danger of this need for legal speed, which he says jeopardises freedom and undermines the rule of law.
He argues the motorisation of the law – its increasing use of technical and scientific standards – undermines traditional legal reasoning, saying: “law making procedures become ever faster and more circumscribed, the path towards the achievement of legal regulation shorter, and the share of jurisprudence smaller”.
In the world of anti-doping and professional cycling this requirement for speed manifests itself in an avoidance of the tardy processes of national law courts and a preference for arbitration.
It promotes a situation whereby presumed guilt and judgment through the media is the norm rather than traditional methods of legal determination. Furthermore the principle of strict liability means the only recourse available is of a formal procedural type. Under the rules of strict liability a cyclist is suspended provisionally once they return a positive test result – indeed this is what happened to Contador in 2010.
He was able to return to cycling in the interim because he was in fact acquitted by the relevant Spanish authorities. In February last year, the then President José Luis Rodríguez Zapatero publicly stated on the government’s Twitter page: “there’s no legal reason to justify sanctioning Contador", a position supported by his opponent and successor, current President Mariano Rajoy.
Their reasoning was supported by that of Angel Juanes, the president of Audiencia Nacional (the Spanish High Court) who questioned the constitutionality of the strict liability principle, which removes the presumption of innocence.
Nevertheless, once exonerated by the Spanish cycling federation, Contador was free to compete until the hearing of the appeal.
Putting aside all the other issues at play in Contador’s case – and I’m not entering into the question of whether he is guilty or not – was it really the drawn-out affair that the received wisdom says it was? Did it really take a long time?
In reality, it was only 16 months from when the Contador case became public (in late September 2010) until the CAS decision earlier this week.
That period includes the opening of the case, the hearing and decision by the Spanish cycling federation, the preparation and hearing of the appeal in CAS, not to mention the time it took the three arbitrators to write their 98-page, 514-paragraph decision.
Given the complexity of the case, the evidence adduced and the maze of scientific and legal issues at stake, is it really fair or accurate to describe this as a drawn-out affair?
Remember that there’s plenty at stake in the Contador case. It not just the cyclist’s reputation on the line (there is also considerable ambiguity in the CAS decision as to whether Contador intentionally doped), but also his name on the record books of the 2010 Tour de France and the 2011 Giro d’Italia.
Along with this, the UCI is seeking a fine from Contador to the tune of €2,485,000. The CAS has yet to decide upon this aspect of the case.
Bloomberg News has put the potential financial cost of the case to Contador as being in the vicinity of US$6m, once you consider the fine and legal costs.
But this figure does not seem to take into account the ramifications for Contador’s earnings this year, nor his potential loss of sponsorship.
Would we really state an investigation, court hearing and appeal process was tardy and drawn-out if what was at stake was a wealthy entrepreneur who’d had their reputation trashed, was exposed to being banned from performing their business and exposed to a A$3m fine, among other significant financial losses?
Given what was at stake, I’m not sure we would.
If we judge it by traditional legal standards and the length of most court cases in our legal system, the Contador’s case was definitely not drawn out.
See Alberto Contador banned for doping, but what is clenbuterol? by Laura Corbit on The Conversation.
Julian Del Beato
logged in via Facebook
i agree that the process was not unnecessarily lengthy. the principle of strict liability places the onus on riders to prevent illicit substances from entering their bodies. once they've failed to fulfil that obligation, the rider should be suspended. after then, how long the rider wants to draw it all out depends on how hard they want to fight - it should be their problem. what went wrong here is that the spanish federation threw a spoke in the wheels, not the legal process as designed. it was a pretty overt abuse of their obligations by the spanish that allowed contador to continue racing and turning those races into a farce.
Martin Hardie
Lecturer in Law at Deakin University
Julian,
I think the Spain is bad and the problem line is another one of cycling's mantras that obscure the facts. The case was always borderline as the amount was so slow. To say the Spanish decision was overt abuse is avoiding entering into the complexities of anti-doping as a form of transnational or supranational 'law'. It is more of the Spain = bad, Anglo cycling=good rhetoric. Have a read of this piece on Operacion Puerto http://www.newcyclingpathway.com/news/blog/its-not-about-the-blood-hardie-on-puerto
The real spoke in the works was provided by by the UCI in their attempt to keep the case from becoming public I have written on this here http://communities.deakin.edu.au/deakin-speaking/node/246 and http://cyclismas.com/2011/10/sporting-crusaders-%E2%80%93-beauty-and-the-beast/
Martin
Julian Del Beato
logged in via Facebook
Martin, your Puerto paper is a great read. I had not appreciated all of those factors.
However, I'm a bit confused on your discussion on the end of 'modernist idea of the rule of law' and how it is being overtaken by 'trial by media'. In that context, was the UCI not justified in concealing Contador's positive test result? Obviously not, if their intention was to conceal it permanently, but whether or not that was the case seems unclear (I for one wouldn't be shocked either way).
For the record…
Read moreMartin Hardie
Lecturer in Law at Deakin University
Julian
I am glad you liked the paper - it is only the beginning of my work on Puerto.
Like God's the hand of the UCI moves in mysterious ways, Contador might be Spanish but he is also been part of the school that holds power - Bruyneel, Saiz, MQuaid and Verbruggen.
In relation to Valverde you open a whole new can of worms which I am working on, but to be succinct, my original text contained an extra line after the mention of Puerto:
Alejandro Valverde’s case where the Italian Olympic Committee (CONI) could adjudge a Spanish citizen for offences that allegedly occurred on Spanish territory despite rulings of a superior Spanish Court and on the basis of a matrix of circumstantial evidence not entirely related to the issue at hand is the prime example of this.
I am working on this at the moment and how again anti-doping creates a supranational form of (not) law very different to traditional principles.
Martin
Jim Mansir
logged in via Facebook
While biking is doing its part...Bikers and Racers have to do theirs as well. Cheating is cheating, whether it is drugs or other means. Everyone is responsible to perform their best, naturally. If you win, congrats! If not, do your best!
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