Athletes see doping case appeals as futile exercise
Second of two parts
A panel of international sports arbitrators hearing a doping case against Olympic sprinter Torri Edwards went out of their way to sing her praises.
They described Edwards, then a 27-year-old USC graduate, as “a diligent and hardworking athlete” who had “conducted herself with honesty, integrity and character.”
They acknowledged that her purported breach of doping regulations was entirely unintentional, caused by the obscure additive nikethamide in a couple of otherwise innocent glucose tablets she took at an exhibition race in Martinique.
“She has not sought to gain any improper advantage or to ‘cheat’ in any way,” they wrote in August 2004.
But the arbitrators, while expressing “unease” about the rules and acknowledging their “harshness,” still found Edwards guilty of doping. Her sanction: a two-year suspension from international competition.
The punishment was indistinguishable from what could have been imposed on an athlete caught deliberately injecting steroids. It wiped out Edwards’ eligibility for the 2004 Summer Olympics in Athens.
Edwards’ case and others like it illuminate the flaws in the appeals process for elite athletes accused of doping violations. A Times examination of the appeal system found that:
• Athletes are presumed guilty and denied routine access to lab data potentially relevant to their defense.
• Trivial and accidental violations draw penalties similar to those for intentional use of illicit performance-enhancing substances.
• Anti-doping authorities or sports federations have leaked details of cases against athletes or made public assertions of their guilt before tests were confirmed or appeals resolved.
• Arbitrators, theoretically neutral judges, are bound by rules drafted and enforced by the World Anti-Doping Agency and its affiliates, including the U.S. Anti-Doping Agency. They have almost no discretion to adjust penalties to fit individual circumstances.
The WADA rules govern the admissibility of evidence, the burden of proof and the selection of the arbitrators themselves. In each category they tend to favor the accusers. Athletes wishing to compete in national, international and Olympic events subject to WADA jurisdiction have no option but to agree to this system.
Anti-doping authorities argue that these rules — indeed, the very requirement that appeals be heard by arbitrators, rather than in court — are crucial to ensuring a fast and efficient process.
The question is whether they go so far that they deprive athletes of due process and fair hearings.
On the surface, anti-doping arbitrations resemble other commercial arbitrations. Generally, the athlete and the prosecuting agency each select one arbitrator, and those nominees jointly select a third. But the limits under which the panels operate differ from those in other commercial arbitrations.
“The rules are designed to make it as easy as possible to convict an athlete,” Howard Jacobs, a prominent Agoura Hills-based athletes’ attorney, told an American Bar Assn. conference this fall.
The arbitration provisions, he said, require that “their tests are presumed to be scientifically valid. It’s assumed that their labs did everything perfectly. And they have no obligation to provide you with documentation to rebut these presumptions.”
This also differs from the standards in a U.S. court of law, where defendants or litigants are routinely granted access to a wide range of documents and the right to cross-examine expert witnesses and challenge technical evidence in great detail.
A costly undertakingAccused athletes find that challenging a system stacked against them can be extraordinarily costly, prompting some to abandon any effort at defense.
“It wiped out my life savings and my college savings,” Zach Lund, 27, a world-class skeleton sled racer from Salt Lake City, said of his effort to clear himself of doping charges.
In 2005, a drug test found traces of finasteride, an ingredient in anti-baldness medication, in his urine. The substance had been banned only that year over concerns that it might mask the presence of steroids in urine samples. That concern, however, was based on a single study by a WADA lab that had not been peer-reviewed by a medical journal. And Lund had been taking the hair restoration prescription for five years.
“I lost all my sponsorships and my funding” from the U.S. Olympic Committee, Lund said in an interview. “I even had to get money from my family and friends. The system is broken. Right now, it’s catching people who make mistakes.”
An arbitration panel acknowledged that the finasteride came from Lund’s medication. In upholding a one-year suspension that deprived him of a chance to compete in the 2006 Winter Olympics in Turin, Italy, which opened on the very day of the ruling, arbitrators called him “an honest athlete” and acknowledged that the substance had no performance-enhancing effect.
They conceded that they had reached their decision “with a heavy heart”: Although Lund had faithfully disclosed his medication on anti-doping forms at every event, no official had ever alerted him to the change in finasteride’s status.
“The panel finds this failure both surprising and disturbing, and is left with the uneasy feeling that Mr. Lund was badly served by the anti-doping organizations,” they wrote. Still, under the rules, the best they could do was impose the minimum one-year sanction.
A perfect recordUSADA has never lost an arbitration case in its history, a record that spans six years and more than 40 proceedings. Authorities call that record a testament to their skill at bringing only bulletproof cases.
“If you’re a clean athlete, you have nothing to worry about,” says Travis T. Tygart, the agency’s general counsel. “We don’t proceed if it’s not a doping case.”
USADA Chief Executive Terrence P. Madden dismisses criticism of the arbitration process as sour grapes from athletes’ lawyers.
“These are the same old tired arguments that we’ve heard for six years, and it’s the same defense counsel who bring them up,” Madden said.
Madden and Tygart contend that the agency’s advantages in the arbitration system only compensate for its lack of governmental powers, such as subpoena authority. Athletes “want a set of rights that far exceeds the powers we have,” Tygart says. “They say you have to give them constitutional due process. If that’s so, then give us search-and-seizure powers to balance out that right.”
But criticism of the process is more widespread than they acknowledge. Even some arbitrators are uncomfortable with the system.
“It’s not serving the purpose it was meant to — to give the athlete a real opportunity to be heard,” says one long-term doping arbitrator who did not want to be named so as to avoid internal controversy.
Pushing backArbitrators staged a rare revolt against anti-doping rules last summer in the case of Mariano Puerta, an Argentine tennis player who had accidentally ingested a tiny amount of a banned stimulant just before playing in the French Open. Puerta faced an eight-year suspension, which the panel considered tantamount to a lifetime ban for the 26-year-old athlete — “a result that is neither just nor appropriate,” the panel wrote.
They agreed that Puerta’s positive test resulted from his unwittingly sharing the same water glass that his wife had used for her medication.
Arguing that an appropriate penalty did not seem to be contained within WADA’s rules, they fashioned their own solution by imposing a two-year ban. “The panel is not persuaded … that it is necessary for there to be undeserving victims in the war against doping,” they explained.
But Puerta’s case is unique. Only three times has an arbitrator in a U.S. case even filed a dissent. All three were by the same arbitrator: San Francisco lawyer Christopher L. Campbell, a former Olympic wrestler often selected as an arbitrator by athletes.
One of Campbell’s dissents came in the case of Kyoko Ina, a U.S. figure skater accused of refusing a drug test late one night. Evidence showed that a USADA official had led her to believe the test could be rescheduled for the next day. Because of the misunderstanding, she was threatened with a four-year suspension, despite never having failed a test or been suspected of doping.
“When any organization, including [USADA] turns this fight against doping on innocent athletes, that behavior is unacceptable,” Campbell wrote.
Ina negotiated a two-year suspension and subsequently joined a professional ice show.
The current arbitration system took form after the creation of WADA in 1999, when sports organizations concluded that a unified anti-doping regime was preferable to the patchwork of national and sports-specific policies then in effect.
The tilt toward the prosecution in arbitration cases begins with the selection of arbitrators themselves. The rules require all arbitrators to be accredited by the Swiss-based international Court of Arbitration for Sport. In the U.S., the initial appeal by an athlete is heard by members of the court’s North American branch. Any subsequent appeal is heard by panelists selected from the court’s international membership.
Many arbitrators have current or prior professional relationships with USADA, WADA or other sports organizations that frequently serve as the prosecution in anti-doping cases.
Of the 45 members of the North American branch, at least 24 have such affiliations. They include Richard Young, an outside counsel to USADA, and WADA Chairman Richard W. Pound. Although neither has arbitrated a doping case, athletes’ attorneys say their mere membership in the sports arbitration pool fosters an impression that the system is slanted against them.
In 2001, USADA staged an expense-paid visit for all accredited arbitrators and their spouses to the UCLA Olympic Analytical Laboratory, the leading WADA lab in the world. The session, attended by 22 of the 38 arbitrators then in the North American pool, featured presentations by USADA officials and Don H. Catlin, the lab director, capped by a night out at a Santa Monica restaurant.
“The arbs are jurors,” says Edward G. Williams, an athletes lawyer who contends the session was tantamount to “a bribe.”
“I’ve said anyone who went through that session should be disqualified,” Williams said. “I always lose that argument.”
The most powerful element tilting the process toward the prosecution is the presumption that the agencies’ scientific tests are valid and that the work of WADA’s accredited laboratories, which perform all the blood and urine tests, always meet international standards. The presumption is written into the WADA Code.
The presumption shifts the burden to the athlete to prove that the lab’s work fell short of scientific standards and that its failures affected the outcome. The effect is to render the athlete guilty unless proved innocent. That’s a reversal of the situation in a U.S. court of law, where prosecutors carry the burden of proof from start to finish.
“The athlete is being held accountable, but the lab can have a series of small errors and is not held to a strict liability,” says David L. Black, president of Aegis Sciences Corp., a Nashville-based independent doping lab. “No deficiency in the lab performance ever seems to rise to the level of impeaching their finding.”
Adding to the perception of bias are frequent leaks disclosing the names of athletes under investigation and public statements by anti-doping and sports officials asserting the athletes’ guilt, even before appeals have run their course.
Earlier this year, for example, Pound suggested that former Tour de France champion Lance Armstrong had been guilty of doping in 1999. He based his comments on disputed and supposedly confidential research data compiled by WADA’s Paris lab.
“It’s a case that has to be answered,” the WADA chairman said about what he called “documentary” data linked to Armstrong. His statements, along with other comments from sports authorities, drew rebukes from inside and outside the agency.
“Pound shoots at everything that moves,” complained Hein Verbruggen, president of the International Cycling Union.
Losing trustScott Burns, an American member of WADA’s executive committee, also objected. According to minutes of the September 2005 committee meeting, he complained that it was “the antithesis of what was done at WADA … to speak out or speculate precipitously, especially in public.” As a result, Burns said, WADA risked having “lost the trust of athletes.”
Another problem facing athletes is the limited availability of independent experts such as Black. A WADA rule prohibits members of its 34 accredited laboratories from testifying in defense of an athlete in a doping case.
The rule exists to shield the WADA labs from political pressure that might be exerted on behalf of a high-profile athlete from their own country, said Olivier Rabin, the agency’s medical director.
Still, it reserves the expertise of most of the top doping scientists in the world for use exclusively by the prosecuting agency.
“It’s difficult to establish the credibility of our experts when they go up against people who do this every day for a living,” said Michael Straubel, a law professor at Valparaiso University in Indiana who has defended numerous athletes.
Athletes’ attorneys also face obstacles obtaining technical documents from the agencies. Under USADA rules, the agency is required to produce only records concerning the specific test performed on the athlete’s own sample.
Not included are documents that might shed light on a WADA lab’s general proficiency or its treatment of other similar cases, arguably pertinent to defense questions about lab consistency or reliability.
Tygart calls the document package routinely shipped to accused athletes “fair and overly generous.” The U.S. agency generally rejects requests for further data unless the athlete “can articulate a need that’s not a fishing expedition,” he says.
USADA’s position will probably be tested by Tour de France champion Floyd Landis, who has been charged with testosterone doping in the 2006 race.
Jacobs, Landis’ attorney, submitted a 10-page request in October for documents related to the Paris WADA lab’s general experience with the testosterone screening. Landis hopes to challenge whether the French scientists “have sufficient expertise at running this test” and whether they can justify their criteria for declaring the cyclist’s sample positive.
Tygart rebuffed Jacobs. “Every request you make appears to seek documents or information not called for by the rules,” he wrote. The defense lawyer is expected to ask arbitrators to force the release of more documents.
Even when an athlete is able to present a detailed case, the WADA Code ties arbitrators’ hands in several ways. For example, arbitrators are prevented from considering an athlete’s intent when judging a doping charge.
Under the prevailing principle of “strict liability,” the mere presence of a prohibited substance in a blood or urine sample is sufficient to establish the violation, even if it is proved that the breach was accidental.
“We are fact-finders, and we apply the law within the narrow strictures that we are given,” says Maidie Oliveau, an experienced anti-doping arbitrator based in Los Angeles.
Arbitrators may overturn a proposed suspension only if an athlete can prove he or she bears “no fault or negligence.” They may reduce a suspension, albeit by no more than half, if they find “no significant fault or negligence.” The standards for such relief are ambiguous and “virtually impossible to meet” in practice, says Jessica K. Foschi, who studies legal issues in doping at Duke University Law School.
A suspension waivedIn the seven years since WADA’s founding, only one athlete out of hundreds who have been sanctioned is known to have met the “no fault” standard: Australian tennis player Todd Perry. He proved last year that a tournament doctor had refilled his legal asthma inhaler with a banned drug without notifying him.
Arbitrators waived Perry’s two-year suspension. Though they also absolved him of fault, they let stand his formal reprimand. Under the agency’s strict liability doctrine, Perry remained a violator for having an illicit substance in his system.
The strict liability standard applies even when a doping charge hinges on subjective interpretations of laboratory readouts. These include WADA’s test for erythropoietin, or EPO, a hormone that promotes red blood cell formation.
Chances of a misreading are high, according to the technical literature and experts interviewed by The Times. Several recent EPO charges have been dropped because retests failed to confirm initial lab findings or encountered other testing flaws.
“Testing is far behind where it needs to be, but the rules don’t reflect that,” Foschi says.
Foschi, who was accused and cleared of doping charges as a 14-year-old swimmer in 1995, criticized no-fault rules that require an athlete to prove how a substance entered his or her body to obtain a reduced penalty.
“The person who is most in trouble is someone who is genuinely innocent and has no idea how something got in his or her system,” she said.
In her own case, she says, her sample was taken at an event in Pasadena, but she was not informed of the results until a week later, when she was competing across the country and the Pasadena venue had been dismantled. “By then it was impossible to go back and investigate.”
Frustration with a harsh and rigid system may ultimately increase pressure for outside judicial review.
“There are cases where everyone doubts that justice has been done,” says Bradley J. Andreozzi, a Chicago lawyer who has prosecuted and defended doping cases. He said the program is in danger of becoming “just a trap for the unwary.”
But reforming the system could be costly. “The price of relaxing strict liability would be a period of less-stringent controls,” said John Hoberman, an expert in doping policy at the University of Texas.
The cost of prosecuting authentic doping violations would go up, he predicted. “The payoff might be much better tests and not trampling on the rights of athletes who have all been thrown into one category labeled ‘guilty,’ ” Hoberman said.
Many professionals within the system believe that the appeals process must become more flexible.
“We should have more discretion within certain parameters, such as in cases where there’s no performance enhancement and no intent,” said the longtime arbitrator, who asked to remain anonymous to avoid internal controversy.
USADA officials say they have proposed revisions to the WADA Code allowing arbitrators more latitude to reduce penalties in inadvertent cases — or to impose enhanced penalties in egregious cases.
But WADA’s leaders are leaning in the opposite direction. Pound, for one, says the rules are already flexible enough to accommodate all situations that arise in individual cases.
“The system, as a system, is a pretty good one,” he said. “It can be tweaked here or there, but we’re not sitting down with a blank sheet of paper and redesigning the entire world anti-doping system.”