Steroid Penalties May Go on Trial

Jessica Foschi of Old Brookville, N.Y., is on the verge of becoming a world-class distance swimmer, but whether she ever achieves that status may not be determined by her performances.

Instead, Foschi’s future may rest with U.S. swimming officials, arbitrators and judges, a possibility that makes her shudder.

The Long Island teenager is the focus of a drug-testing controversy that could have worldwide reverberations in amateur sport. It is a proposition that has overwhelmed her parents, who vehemently deny that their daughter purposefully took an anabolic steroid to become a better swimmer.

In what is expected to be a protracted fight, U.S. swimming’s board of directors will conduct a hearing in Orlando today and Monday, then decide whether to ban Foschi, 15, from competition for two years, the standard sanction for first-time steroid offenders.

The Foschis are demanding that the board drop a two-year probation against their daughter, who tested positive for mesterolone, a steroid not manufactured in the United States.

Last week the family sued U.S. Swimming and the U.S. Olympic Committee in New York State Supreme Court, hoping to stop officials from banning Foschi until her sample is retested. If Foschi is banned, they plan to seek arbitration and then pursue the lawsuit.

With much of the swimming world scrutinizing the sudden rise of China’s women and adopting tougher doping sanctions, Foschi’s case puts U.S. officials in a delicate position.

That is why Carol Zaleski, president of U.S. Swimming, took the unusual action of appealing last fall’s decision by her organization’s National Board of Review, which put Foschi on two-year probation for the positive result from the summer national championships in Pasadena.

“We’re so judgmental when it comes to the Chinese,” said Melvin Stewart, a gold-medal winner in the 200-meter butterfly. “Then when it comes to one of ours testing positive we give them probation? No, it can’t work that way. We have to ban her. We have no choice. If we don’t, we lose a lot of credibility.”

Many swimmers at this week’s U.S. spring nationals here echo Stewart’s sentiments. Despite the opinion, Foschi is competing in preparation for next month’s U.S. Olympic trials and has entered today’s 1,500-meter freestyle.

Foschi, her parents and coach, David Ferris of the Long Island Aquatics Club, maintain that they do not know how the swimmer’s urine sample turned up with high dosages of mesterolone, a sign of long-time or recent use.

They have taken polygraph tests and also sent Jessica to a specialist to see if her body showed signs of extended steroid use. A report prepared by the physician said it did not.

It has been suggested that Foschi’s water bottle was sabotaged, although there is no evidence of that. As a matter of precaution, officials at the spring nationals at Orlando have taped the lids of the water and Gatorade containers used by swimmers.

Some have said that Jessica’s father, Bob Foschi, a structural engineer, bought the drug during a trip to Europe. Still others have said that Ferris or his assistant from Eastern Europe gave Foschi the drug unwittingly.

Whatever happened, Foschi’s urine samples were positive. And for many in swimming that is all that matters.

But two members of the National Board of Review, former Olympians Bill Stapleton and Jill Sterkel, said they believed the Foschis.

“We did the right thing,” Stapleton said from Austin, Texas.

Zaleski and many others in U.S. Swimming counter that even inadvertent steroid use is not excusable, according to international swimming guidelines. FINA, the worldwide governing body, is expected to ban Foschi if the U.S. organization does not.

Citing the legal concept known as strict liability, swimming leaders say that lack of intent is not relevant.

“If someone tests positive for a steroid, unless there is some extraordinary circumstance, then the penalties apply,” Zaleski said. “I don’t know anyone who ever sat before a panel and said, ‘Yes, I’ve been taking this particular drug.’ ”

Foschi’s attorney, Mark Levinstein of Washington, D.C., plans to attack strict liability, on the grounds that due process rights have been trampled in Foschi’s case for the sake of presenting a strong international image.

FINA’s rules state that a drug hearing “should take into consideration the circumstances and the known facts of the case.”

And in a little-known case last April, U.S. shotgun shooter George Quigley appealed to the court after he was banned for taking a medication during competition in Egypt. The court ruled that strict liability can be applied only when the governing body clearly states it in the rules. Levinstein argues that the phrase is not to be found in FINA documents and rules.

Stapleton, who said the attacks on him have been personal because he voted to go light on Foschi, wondered why he was asked to hear the case if it didn’t matter how the drug got there.

“I don’t want to be part of a sport where we don’t give the athletes a chance to explain themselves,” he said. “It is un-American that we’re not going to stand up for an athlete who is telling the truth to save face with the rest of the world.”

Foschi showed no emotion when randomly selected for a drug test after finishing second to Brooke Bennett in the 800-meter freestyle Saturday night at the U.S. spring national championships in Orlando.

By now, she knows the routine.