USADA enters a gray area

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    Ryan
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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

    American

    officials.

    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

    conventional

    drug test.

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

    to

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

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

    of

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

    Already,

    some harsh if unintended consequences have been created, lawyers and

    anti-doping

    experts say.

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

    Olympics,

    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

    substances.

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

    of

    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

    in

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

    on

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

    face

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

    own

    performances.

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

    of

    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

    the

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

    evidence

    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

    them

    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

    quick

    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

    said.

    “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,

    shortly

    before the most important event in the sport.”

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

    Jones

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

    fairly.

    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

    a

    leadership role in this fight.”

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

    aggressive

    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,

    which

    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

    lawyer

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

    on

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

    the

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

    determinative.”

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

    reporters

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

    said

    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

    increased

    the level of suspicion about her.

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

    may

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

    some

    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

    were

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

    test

    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

    growth

    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

    C,

    or other legal supplements.

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

    schedule.

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

    will

    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

    for

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

    would

    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

    that

    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

    be

    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

    that

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

    checks or

    dosage summaries could prove that illicit substances were purchased and

    used.

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

    it’s

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

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

    athletes

    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

    arbitration

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

    was

    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

    agency

    or other organizations, lawyers said.

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

    ground,”

    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

    before,

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

    much is

    enough documentary evidence.”

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