Relaxing whilst doing Competition Law is not an Oxymoron

Anti-doping and Antitrust

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(Note by Alfonso:Pablo Ibañez Colomo is once contributing to our blog, and, as usual, he provides us with his original views. This time he resorts to a recent high profile doping case to highlight the common features between anti-doping and antitrust law. By the way: cycling is a very sensitive issue for me nowadays since the brand new bike that my friends recently got me for my birthday was stolen during the weekend..)

I have always been a cycling fan (and I am now the proud owner of a proper road bike, happy to report that London is a bike-friendly city—and not only because it does not rain that much). After this introduction you will not be surprised to learn that I have been closely following the doping case involving Alberto Contador, three-time winner of the Tour de France.

For those of you who are not familiar with the case, let me give a brief introduction. Two months after last year’s Tour de France, it was made public that Alberto Contador had tested positive for clenbuterol in the race. This looked like a borderline case from the beginning (it has been reported that the case was made public only because the information was leaked to a German journalist). Apparently, the amount of clenbuterol detected was really really small, and the possibility that the cyclist had ingested contaminated beef could not be ruled out at the outset (at the very least, it did not seem to be one of these improbable excuses advanced by athletes in similar circumstances). Against this background, the Spanish Cycling Federation cleared the cyclist. This decision has recently been appealed by the UCI (Union Cycliste Internationale) and the WADA (World Anti-Doping Agency) before the TAS (Tribunal Arbitral du Sport).

The more I read about this case, the more I thought about the analogies between anti-doping and antitrust in many respects. These are relatively young legal disciplines that are at the crossroads of administrative and criminal law, of private and public law and in which authorities still have a long way to go in many respects. Let me mention two aspects in which the analogy between the two fields is particularly marked:

(click here to continue reading)

Due process and deterrence: Both anti-doping law and antitrust are concerned above all with deterrence (this seems obvious if considers the fact that these two disciplines deal with unlawful behaviour that is inherently difficult to detect).

This fundamental fact explains, for instance, that sanctions are becoming heavier in both areas. For instance, Pedro Delgado would have been sanctioned with a 10-minute penalty in the 1988 Tour (!) and any cyclist typically faces a two-year suspension in similar circumstances nowadays. The exponential increase in the amount of fines in EU competition cases need not be developed further in this blog…

The importance of deterring behaviour also explains that procedural guarantees are not always respected (or at least significantly less so than in other comparable areas of the law). The two disciplines are marked by a very strong prosecutorial bias. After all, the success of authorities is measured against the infringements detected and sanctioned. This has become particularly perverse in the case of anti-doping law. Once an athlete is tested positive, the assumption is that s/he has cheated and it is expected that s/he will be sanctioned (and the attitude of the public opinion is no better). As shown in the case of Alberto Contador, even suggesting an alternative explanation for the situation is taken as a lack of commitment in the fight against doping.

More on due process:

–       In cartel cases, EU courts have allowed the European Commission to rely on a set of presumptions that are at the very least controversial (this includes, inter alia, the ‘single continuous infringement’ doctrine or the relationship between a parent company and its subsidiary). In some cases, one could claim that an impossible proof (probatio diabolica) is required from companies. Think for instance of Michelin II and the difference between object and effect in Article 102 TFEU cases…

–       In anti-doping law, athletes are objectively responsible for the substances found in their bodies. In many ways, the legal principles are at odds with very basic human rights principles. It is for Alberto Contador to establish that the substance comes from contaminated beef. This somewhat aberrant feature of sports legislation can be explained from a historical perspective. There was a generalised perception in the 1980s that doping had grown out of control and that firm action was needed. This should not mean, however, that due process guarantees should not be respected (I do not think I exaggerate if I say that any other conclusion would be a step back of several centuries).

Standard of proof: While not an anti-doping expert, I think I have grasped the essence of the Contador case. I believe it would be of interest for any competition lawyer. As I understand it, the matter boils down to identifying the most plausible explanation for the presence of the traces of clenbuterol in Alberto’s body. If the contaminated beef hypothesis really is the most plausible one, the argument goes, there should be no reason to take action against the cyclist. However, I understand that the issue is not quite as settled (although case law is evolving in that direction) and that, in this sense, the Contador case may in fact contribute to the clarification of the matter before the TAS.

All of this will be familiar to an EU competition lawyer. In the context of Article 102 TFEU, companies face a notoriously difficult situation before EU courts. Once the European Commission has come to the conclusion that the company is dominant and that its behaviour falls within one of the pre-defined categories of abusive conduct (or alternatively, that there are reasons for an ad hoc expansion of the scope of Article 102 TFEU) there is little that it can do: intent does not matter, the absence of anticompetitive effects does not matter, the de minimis character of the behaviour does not matter… Nothing to do with the need for the European Commission to bring ‘convincing evidence’(within the meaning of Tetra Laval) in vertical and conglomerate merger cases.

I believe I am not the only competition lawyer hoping that Article 102 TFEU will soon go through its very own ‘Tetra Laval moment’. I also believe that I am not the only cycling fan that hopes that the ruling on appeal in the Contador case will be more of a Tetra Laval than of a Michelin II.

Written by Alfonso Lamadrid

5 April 2011 at 1:50 am

Posted in Uncategorized

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