USADA enters a gray area

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    SAN FRANCISCO, May 26 – When the United States Anti-Doping Agency was

    created in

    October 2000 to oversee drug testing in Olympic sports, it was largely

    hailed as

    an independent body that would aggressively nab cheaters and dampen

    international allegations of foot-dragging or cover-ups on the part of



    Four years later, the anti-doping agency is treading new ground in the Balco

    steroids case – trying to bar athletes if sufficient evidence indicates that

    they have used banned substances, even if they have not failed a


    drug test.

    With the Olympic track trials set to begin July 9, and the Athens Olympics


    start Aug. 13, this novel effort to ensnare cheaters is being tested under

    tremendous time constraints, in a high-pressure atmosphere where questions


    fairness, evidentiary proof and due process will be fiercely debated.


    some harsh if unintended consequences have been created, lawyers and


    experts say.

    The reputation of track and field, the showcase event of the Summer


    has suffered greatly, they say, as has the reputation of Marion Jones, the

    Olympic sprint champion, who is being investigated but has not been formally

    accused of doping and has repeatedly said that she does not take banned


    “Marion’s in a terrible position,” said Jim Coleman, senior associate dean


    the Duke law school, who has both prosecuted and defended athletes in doping

    cases. “I think her reputation has been destroyed.”

    No one is arguing against making track and field as clean as possible. But


    the coming weeks, the anti-doping agency will essentially face a referendum


    the legitimacy of its own actions, just as some athletes will potentially


    judgment before the agency and the arbitrators on the legitimacy of their



    “This seems to be headed quickly for a confrontation on the appropriateness


    potentially disqualifying athletes who have not had a positive test,” said

    Edward Williams, a New York lawyer who represents several athletes on

    Balco-related issues.

    The anti-doping agency has not said whether it will seek to bar Jones from


    Olympics. If it does, its case would be based, in part, on documentary


    obtained in a file bearing her name taken from the Bay Area Laboratory

    Co-Operative. The lab was raided last September by federal authorities, who

    recently turned over documents to the Senate Commerce Committee, which gave


    to the anti-doping agency.

    On Wednesday, Joseph Burton, a lawyer with the San Francisco firm of Duane

    Morris who represents Jones, called for the anti-doping agency to make a


    decision about Jones, one he believes should be a public exoneration.

    “I think it’s unfair to let her twist in the wind in a public way,” Burton


    “I think it’s bad for track and field in general to have this negative

    atmosphere surrounding one of the most important people in the sport,


    before the most important event in the sport.”

    Officials of the anti-doping agency have declined to speak publicly about


    or any other athlete, except to say they are acting appropriately and


    Dick Pound, chairman of the World Anti-Doping Agency, praised the American

    agency, saying, “For the first time in many, many years, the U.S. is taking


    leadership role in this fight.”

    The legal and public-relations team representing Jones has taken an


    public stance, threatening to sue if she is barred from the Olympics on any

    evidence short of a failed drug test.

    Jones’s representatives asked for a meeting with anti-doping officials,


    occurred Monday. Burton then criticized the evidence provided them by the

    American anti-doping agency as feeble and far below the standard of beyond a

    reasonable doubt that is being used to disqualify athletes who have not

    failed a

    drug test.

    “So far, he’s doing an excellent P.R. job,” David Ulich, a Los Angeles


    familiar with doping cases, said of Burton. “I think he’s putting U.S.A.D.A.


    the defensive. He’s making such convincing statements to the press regarding


    lack of evidence, U.S.A.D.A. would have to come out with something


    Others have questioned whether Jones’s lawyers should have shown to


    the evidence given to them by the anti-doping agency. Her representatives


    they preferred making the documents public on their own terms, rather than

    hazard the possibility that they would be leaked by others. The risk, some

    lawyers said, is that this attempt to clear Jones’s name might have


    the level of suspicion about her.

    “It permits the public to speculate that documents refer to her and somehow


    indicate steroids she took,” Coleman said. “No matter what comes out later,


    people will believe she committed a doping violation and everything she

    accomplished is a fraud. That’s too bad.”

    Documents shown to The New York Times on Tuesday included urine tests that


    negative for anabolic steroids, an unexplained ledger that appeared to list


    results under the name of Marion J., and a training calendar bearing the

    initials M. J. that contained one-letter references like C, G, E and I. What

    these letters mean is not known.

    Drug-testing experts said they might correspond to banned substances in the

    Balco case like the steroid THG, also known as “the clear,” as well as


    hormone, epitestosterone and insulinlike growth factor. A more benign

    explanation, as suggested by a published regimen of Jones’s nutritional

    supplement intake, is that the letters could refer to vitamin E and vitamin


    or other legal supplements.

    Burton said the calendar did not even refer to Jones or her training


    What seems clear from viewing the documents is that the anti-doping agency


    need someone to interpret the evidence.

    One potential ally is Kelli White, the world-champion sprinter who last week

    admitted to using undetectable steroids in the Balco case and was suspended


    two years. White’s lawyer, Jerrold D. Colton, said at the time that White


    assist investigators in the case. Another potential witness could be Victor

    Conte Jr., the founder of the Balco lab and one of four men charged with

    distributing steroids in the case. Conte has signaled through his lawyers


    he could be helpful if federal prosecutors made a deal with him that would

    include no jail time.

    “Absent a positive drug test and absent an admission by an athlete, it will


    extremely difficult, if not impossible, for U.S.A.D.A. to meet its burden of

    beyond a reasonable doubt,” said Williams, the New York lawyer.

    But Pound said that eyewitness accounts could provide sufficient evidence


    someone used drugs, or that documentary evidence like e-mail messages,

    checks or

    dosage summaries could prove that illicit substances were purchased and


    “For somebody to say, ‘If you don’t catch me by way of a urine sample then


    no good,’ that’s just nonsense,” Pound said.

    Burton declined to discuss Jones’s potential legal options. Typically,


    participating in Olympic-related sports sign a contract agreeing to binding

    arbitration on matters of eligibility.

    Legal experts said there were limited grounds on which to have an


    decision overturned in court; this could include an arbitration panel that


    shown to be biased or that exceeded the scope of its authority. It is also

    possible that Jones could file a defamation suit against the anti-doping


    or other organizations, lawyers said.

    “With U.S.A.D.A. having these documents, clearly they are breaking new


    said Cameron Myler, a former Olympic luger and a lawyer for three track and

    field athletes in Balco cases regarding stimulants. “It’s not happened


    and athletes are rightly concerned as to where the line is drawn and how

    much is

    enough documentary evidence.”

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