In Any Way Possible?

Wesley Rucker in the Chattanooga Times Free Press hit the nail on the head with his lead to his story Doping Drama when he said:

In the biggest ongoing mystery in international sports — the use of performance-enhancing drugs — there are few absolute, documented truths.

Everything else is a mystery to varying degrees for everyone except the athletes who take the drugs and the people who design and supply them.

Rucker’s story is a long, thoughtful analysis of the state of anti-doping efforts, which features quotes from the usual suspects. Most, if not all, athletes and people who follow sport agree that doping is cheating, and that we must find ways to catch those who dope and punish them.

What becomes contentious is just how to go about doing so. In recent years, the idea of a “non-analytical positive” has taken hold, which allows anti-doping agencies to go after athletes they suspect of doping. Travis Tygart speaks to this issue when he says:

[Y]ou can’t use positive tests alone. If you can prove doping offenses in any way possible, I think we should support that.

There are two things he’s talking about here. First, is the non-analytical positive, first used to prosecute doping cases based on the BALCO investigation. In the case of the non-analytical positive, the agencies have no direct proof that an athlete has doped. They may have circumstantial evidence, like blood bags found in a doctor’s office (think Jan Ullrich), or they may have the testimony of someone who claims to know something about whether the accused athlete doped, be it a fellow athlete, the athlete’s trainer, a friend (or former friend once the case is through), law enforcement or even a sports physician. But what they don’t have in a non-analytical positive is just what the name implies: a positive drug test.

But absent a positive drug test, can you prove that someone doped? Not really. You might be able to prove that a person intended to dope. Why, after all, did Jan Ullrich store those nine bags of blood found in the Operation Puerto investigation? Was it in case he needed emergency blood transfusions? Or was he planning on doping? Given that the blood wasn’t stored at a real blood bank, it suggests he might have been planning on blood doping. But it doesn’t prove anything definitive.

Or you might be able to prove that someone intended to help others dope. Like finding a car full of EPO being driven by a team manager. But until you have a positive doping test, you haven’t proved a doping violation existed. Except when it comes to the concept of a non-analytical positive. Now, if someone has all the supplies to help others dope, or someone has the supplies to dope themselves, perhaps some sort of punishment should be meted out, but in that case, the anti-doping agencies should write specific rules that have specific consequences if violated.

But you still have to be careful about how such concepts are applied. Imagine you own an early-1980s Porsche 911 that you occasionally like to take out on the highway. Now, if it’s in good shape and the engine is tweaked just right, you might be able to top the beast out at about 160 miles per hour at red line. Certainly, the car is built to go that fast. But say you’re driving along at the speed limit and a cop pulls you over.

And when you ask him what’s wrong, he tells you he’s giving you a speeding ticket.

“But I wasn’t speeding!” you protest.

“Yes,” the officer replies, “that’s true. But you have a car capable of speeding, so you must have intended to. That’s why I’m writing you up. It’s what we call a non-analytical speeding ticket, and you’re going to have to pay the price.”

Now imagine a court system that would uphold such a ticket, and not only that, impose a hefty fine, or suspend your license for a period of time. Such is the power of the non-analytical conviction.

All that’s to say, if you have rules against assisting in doping or possessing materials that can be used for doping, along with clearly established punishments, then doping convictions without a positive test might make sense. Without such rules, they fly in the face of logic. Not that the current anti-doping system is inherently logical.

The other aspect to Tygart’s statement that is disturbing is this: The idea that the ends justify the means. In other words, no matter how we get a conviction, even if we have to break the rules, then it was OK to do so because we got the conviction.

Nope, sorry, that’s just not true. I think most people would agree that doping is cheating. Breaking the rules in order to win. But the system that is charged with catching and punishing dopers is supposed to uphold the ideal that athletes should follow the rules. So there’s a huge element of irony and hypocrisy if the anti-doping system must break the rules in order to get a conviction. And you have to wonder, if they needed to break the rules to convict someone, did the person really commit the offense to begin with?

That was a huge bone of contention between USADA and the Landis defense team on the issue of testing his other B samples from the 2006 Tour de France. Landis’ side contends that to do so breaks the rules. The arbitrators’ ruling allowed the tests to go forward, finding a novel line of reasoning about how it doesn’t break the rules at all. But Chris Campbell, one of the arbitrators, strongly disagreed, saying:

[I]t is inappropriate for USADA to direct further testing of the B Samples. To produce reports from those B Samples, the LNDD would have to violate the WADA Code. I would order USADA to cease and desist from pursuing further testing of those samples. I would also rule that any reports from those B Samples would not be admissible as evidence in this case. The admission of evidence obtained in clear violation of the WADA Code smacks of an uneven application of the rules. To allow such conduct strips this adjudication of the appearance of fairness.

Indeed, it does. And to allow an “ends justify the means” approach to anti-doping efforts also strips the whole system of any pretension of fairness. Instead, it becomes about winning and losing. And in the process, the person who loses the most is the accused athlete. Because, even if exonerated, his or her name and reputation will be dragged through the muck. And the accused athlete, regardless of the outcome, will be convicted in the court of public opinion, with the resulting damage to his/her career.

The system should be about finding the truth. But given the way it currently works, it’s about winning and losing. Carving another notch in the sheriff’s six-shooter. It’s about railroading the accused. If you don’t believe me, take a good look at the Landis case. He’s being railroaded. But unlike most others who’ve suffered through his situation, he’s standing up to the system. Whether he wins or loses next month, he’s drawn attention to a big problem with how the current anti-doping system works. It’s time to fix things, so that this never happens to another athlete again.