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PRESUMED GUILTY

Athletes see doping case appeals as futile exercise

The arbitration system is flawed, with a tilt toward accusers. Accidental and trivial cases result in harsh penalties.

December 11, 2006|By Michael A. Hiltzik | Times Staff Writer

Second of two parts

Click for part one

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 undertaking

Accused 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.

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