May 28, 2004 at 1:01 am #1553
SAN FRANCISCO, May 26 – When the United States Anti-Doping Agency was
October 2000 to oversee drug testing in Olympic sports, it was largely
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
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
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
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
“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,
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
enough documentary evidence.”
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