After spending 90 pages rejecting the allegations from both sides, the panel of CAS arbitrators concluded in four paragraphs that the most likely cause was the use of contaminated food supplements, a possibility that although unlikely, can’t be “excluded.” That was enough to convict Contador, who CAS said had not satisfactorily proven how the substance had entered his body.
CAS suspended him for two years and stripped him of the titles he had won since the detection.
Contador can appeal to the Swiss Supreme Court, but only on procedural grounds. He still also faces a fine of nearly €2.5 million ($3.3 million) for his winnings during the two-year suspension, which will end in August.
“I don’t think they’ll be able to preserve a system based on the presumption of guilt,” says Professor Morales. “Decisions [currently] are based on assumptions. Unless they include minimum judicial guarantees and clarity on how the rules work, everything will be subject to manipulation.”
As long as antidoping cases don’t adhere to strict proof-based criteria, he adds, “you can expect legal uncertainty and controversy.”
But US attorney Howard Jacobs, who has made a name for himself defending athletes charged with doping, says he doesn't have a problem with athletes bearing the burden of proof. “It’s just that it has to be done on a fair way, and that is on a case by case basis.”
Among the cases he has taken on is that of top US swimmer Jessica Hardy, who missed the 2008 Beijing Games after testing positive for clenbuterol but was granted leniency after arguing that it came from a contaminated food supplement.
Jacobs says that in most of the cases he has dealt with, the doping was unintentional. “The athletes are so focused on their sports. Most of them don’t think [of] getting involved [in antidoping rules] until they have a problem, until they are confronted with very difficult rules that seem unfair.”