Track Star Could Face Ban From Olympics

With time ticking toward the Aug. 13 start of the Summer Olympics, U.S. doping officials might seek to ban Marion Jones -- perhaps America’s best-known track star -- from the Games, even though she has never tested positive for steroids or other banned substances.

The U.S. Anti-Doping Agency this week presented evidence to Jones suggesting that she committed doping infractions -- evidence her lawyer says is unconvincing. USADA could seek to ban Jones, a winner of five medals at the Sydney Games four years ago, who has vowed to sue if USADA sought to keep her out of the Olympics.

But legal and doping experts said Tuesday that any such lawsuit would face difficulty because Jones and other world-class athletes agree to accept binding arbitration to settle doping disputes as a condition for competing. A federal judge recently backed the arbitration process in throwing out a challenge by another sprinter.

At stake for both Jones and the anti-doping agency are reputations and legacies. Jones is a three-time gold medalist. USADA, a quasi-independent agency that took over U.S. Olympic drug testing after the Sydney Games, is suddenly presented with its most urgent test.

On Tuesday night, Jones’ attorney, Joseph Burton of San Francisco, discussed 40 or so pages of documents USADA laid before his client, all of it coming from the BALCO investigation.

That included a calendar from the summer of 2001 bearing the initials “M.J.” and appearing to be a guide for taking substances identified as C, E, G and I. Those letters match the performance-enhancing drugs THG (which has been referred to as the “clear”), epitestosterone, human growth hormone and insulin. The “clear” is specifically listed at one point.

But the calendar also includes information, such as 100-meter times, that do not correlate to Jones, or any elite female sprinter, Burton said.

“It’s very difficult for someone to posit it as Marion Jones’ calendar unless they want it to be,” Burton said in a telephone interview. “You have to make a lot of leaps of logic and imagination.”

Burton characterized the evidence as weak, and said he was unaware of any stronger evidence.

USADA officials “are, I’m sure, as nervous as a witch,” said Dick Pound, head of the Montreal-based World Anti-Doping Agency. “But they are doing the right thing by analyzing the stuff and calling the people in and saying, ‘Let’s talk.’ ”

Pound downplayed the import of any litigation from Jones, saying, “The first word from every American child is, ‘Mommy.’ The second is, ‘I’ll sue.’ ”

The situation can be traced to the federal criminal probe launched last year into the dealings of the Burlingame, Calif.-based Bay Area Laboratory Co-Operative, founded by Victor Conte, a self-described nutritionist.

In February, Conte and three others, including the personal trainer for baseball slugger Barry Bonds, were charged with distributing the designer steroid THG and other banned performance-enhancing substances to high-profile athletes in baseball, football and track and field. All four defendants have pleaded not guilty.

Jones was among those who testified last year before a federal grand jury in San Francisco investigating BALCO. So, too, was Tim Montgomery, who is her boyfriend, father of their young son and the world record holder in the 100-meter dash. Bonds, who plays for the San Francisco Giants, also testified.

Jones, Montgomery and Bonds repeatedly have denied using any banned performance-enhancing substance.

On Tuesday, ESPN the Magazine, citing two unnamed sources, reported that a raid last summer at BALCO turned up calendars purporting to show steroid-use schedules for BALCO clients, including one labeled “Tim M” that listed a series of products, including the “clear.”

The San Jose Mercury News reported on its website Tuesday that a training calendar it had reviewed indicated Montgomery was scheduled to use “the clear” eight times in May 2001.

Montgomery’s attorney, Cristina C. Arguedas, said in a telephone interview with The Times, “Tim Montgomery has been tested hundreds of times and always come up clean. We’ve been provided with zero evidence to suggest he has ever taken a banned substance. The fact that anyone is suggesting otherwise is very unfair, very wrong.”

A few weeks ago, the U.S. Senate turned over to USADA material it had subpoenaed from the BALCO criminal case, the material now a key component of USADA’s review of Jones and other athletes.

Others under scrutiny because of a connection include a former Jones training partner, Michelle Collins, the 2003 world indoor 200-meter champion.

Last week, Kelli White, the winner of the 100- and 200-meter sprints at the 2003 world championships, acknowledged after being confronted by USADA with evidence from the government case that she had used performance-enhancing drugs.

White accepted a two-year suspension and is out of the Athens Games.

The U.S. track and field championships are scheduled for July 9-18 in Sacramento; the deadline for naming the U.S. team is July 21.

Traditionally, USADA takes action after a urine sample shows drugs in an athlete’s system. USADA officials do not possess any such positive tests in Jones’ case, Burton said Monday. “Which is, at least in our view, pretty unusual and certainly raises a number of questions,” he said.

But such questions have ready answers, experts suggested.

USADA’s rules allow it to go forward without a positive test, on the basis of circumstantial evidence called a “non-analytical positive” in Olympic jargon. In the BALCO case, this includes e-mail, canceled checks and shipping labels.

In the same way that circumstantial evidence can serve to convict a defendant in a criminal case, it would also, if sufficient, easily pass legal muster in a doping hearing, experts said.

“We’ve executed people in this country for capital crimes where we didn’t have a video of them killing someone,” said Penn State professor Charles Yesalis, a longtime expert on doping in sports.

In addition to relying on circumstantial evidence, USADA would have to prove its case to arbitrators beyond a reasonable doubt -- the same standard prosecutors must meet in proving guilt in a criminal case. Moreover, because time is short, the pace of any proceedings might raise questions of fairness and due process, experts said.

Howard Jacobs, a Westlake Village lawyer with several clients connected to the BALCO investigation, acknowledged, “As an athlete, you agree that any doping charges will be handled through USADA,” but cautioned a moment later, “if there is a perception that there is a complete lack of due process, I don’t know how the courts will react to that.”

A new set of rules, set forth in the world anti-doping code approved in March 2003, may have softened the “beyond a reasonable doubt” standard somewhat, requiring proof to the “comfortable satisfaction of the hearing body.” But Jones sat out the 2003 season during a pregnancy, so the focus is on matters before then.

Pound said the difference between the two legal standards may amount to hair splitting: “Either you’re sure of these things or you’re not.”

Earlier this month, Jones was defiant at a New York news conference. “If I make the Olympic team, which I plan to do in Sacramento, and I’m held out of the Olympic Games because of something that somebody thought, you can pretty much bet there will be a lawsuit,” she said.

Burton said Monday, “We’ve thought about all the possible contingencies and we will be prepared to deal with those contingencies. I don’t want to discuss any legal strategy we might have.”

Jones, however, appears to have already committed herself to binding arbitration in lieu of a lawsuit filed in a court against USADA or another entity, experts said.

An arbitration hearing has many of the hallmarks of a court case, though it probably likely could occur more quickly. For instance, a three-person panel typically replaces a judge or 12-member jury; all three are usually lawyers or retired judges and, in a USADA arbitration, trained in sports law.

In an arbitration, the rules of evidence apply, albeit loosely.

“Every athlete has the right to vigorously contest any doping decision by USADA or WADA and a forum in which to do it,” said Michael Lenard, a Los Angeles lawyer and businessman, member of the Swiss-based International Court of Arbitration for Sport and a player on the 1984 U.S. Olympic team handball squad. “That forum, as recognized by the courts, U.S. federal law and the international and domestic Olympic organizations, is arbitration.”

Steven Ungerleider, a noted author and researcher, said, “A lot of lawyers are screaming, ‘No due process!’ But if you look at the USADA rule book, it’s right there. The athletes sign a contract saying they will abide by those rules” that call for arbitration.

Last week, U.S. District Judge Barbara S. Jones in New York dismissed a lawsuit filed against USADA and USA Track and Field by U.S. distance-running star Regina Jacobs. She said it was a matter for arbitration.

Travis T. Tygart, USADA’s director of legal affairs, stressing that he was not commenting on any particular case, said, “The final step in our process is a final and binding appeal to the [Swiss-based] Court of Arbitration for Sport -- not subject to any further review or appeal.”