What’s USADA Up To? Some Thoughts

Yesterday, Eddie Pells of the Associated Press wrote an article which suggests that Kayle Leogrande of Rock Racing is the John Doe listed in a lawsuit filed against the US Anti-Doping Agency earlier this week. Whether that is true or not, Pells seems to have some interesting information on USADA’s pursuit of Leogrande. As the AP reporter mentions in his story:

Two people with direct knowledge of the case told the AP on Friday that Leogrande was the unnamed cyclist, and that sworn affidavits about Leogrande had been provided to USADA, which was using them in building a case against the 30-year-old.

The cyclist claims USADA planned to test his backup urine sample even though the original ‘A’ sample test came back negative, and the lawsuit seeks an injunction to prevent USADA from ever testing the ‘B’ sample.

Neither Bill Bock, USADA’s main lawyer, nor Leogrande has confirmed whether or not it is true. (From Pells’ story, however, Leogrande sounded angry that he was contacted by the reporter, although he never answered the question of whether or not he is the John Doe mentioned in the lawsuit.)

Rumors have been floating around for some time that Leogrande tested positive at one or more Superweek races during the 2007 event. In the past, Leogrande and team owner Michael Ball have both denied that this was the case. But apparently, if Pells’ story is correct about the affidavits and other details, USADA is certainly trying to build a case against the rider.

So what could be going on? Why would they be looking to test a B sample when the A sample apparently came back negative. First of all, courtesy of a ruling in the Floyd Landis case, USADA got a green light to do such tests. Having gotten an arbitration panel to approve what seems to be a shady tactic, they’re likely to use it whenever it could benefit their case-building. Which means probably as often as they can. Or as often as they can get away with it.

Putting aside whether Mr. Doe is, in fact, Leogrande, what could be gained from such a move? Before I answer that question, here’s a bit of insight an anti-doping insider offered me about the Marion Jones case. Remember, her A sample came back positive for EPO in 2006, and then her B sample came back negative. How could that be? I asked.

His reply was rather intriguing. And while it’s a bit of conjecture from someone who hasn’t seen the official test results, it offers a reasonable explanation for what happened. Let’s say that the cutoff value for the test in question was a value of 80, and that the test has a margin of error of +/- 2. Now say that the initial result was 81. It’s over the limit, but within the margin of error. My source suggested that although such a result shouldn’t be declared a positive (because it falls within the test’s margin of error), perhaps it was in the Jones case.

Now, on retesting, perhaps the result came in at a bit under 80. Let’s say it was 79. Being below the limit, that result would be declared a negative. Got that?

OK, so here’s one possibility for Mr. Doe’s situation. A reverse Marion Jones. Let’s say Doe’s A sample came in at 79.5. Just under the cutoff. Maybe USADA wants a retest to see if the next result might be over the line. And if they got that result, they might argue that because of the margin of error, the first test was wrongly declared negative (given that there’s a +/- 2 margin, and 79.5 + 2 is 81.5, and thus over the limit) and they’ve got an anti-doping case to pursue. Of course, following the same logic, the real result on the first sample could have been 77.5 (79.5 -2), too.

There’s another possibility for what USADA is after. And that’s a non-analytical positive. In the Balco cases, several athletes were found guilty of doping based on the new concept of a non-analytical positive. Say USADA has evidence, like some affidavits from other cyclists, that says Mr. Doe has used performance-enhancing drugs. In that case, you’ve got a he-said/they-said scenario. Not exactly a compelling case. When the first few cases where the non-analytical positive were argued, the arbitration panels held USADA to a higher standard than in a typical doping case. They wanted proof beyond a reasonable doubt.

Well, in that situation, affidavits alone won’t cut it. In the Balco cases, much evidence seized from the company’s offices and other locations pointed to the athletes’ guilt. Among that evidence were lab results that Victor Conte and company had used to monitor the athletes using their products.

If USADA knew that Doe’s A test that was borderline, and thought that on retesting the result might come up above the threshold, then they’d have a more solid case for a non-analytical positive. According to the rules, they can’t make the case solely on the basis of a B sample result. But nothing’s to stop them from making the case based on other evidence, and oh, by the way, we have this, too. It’s a cynical ploy, to be sure. But I wouldn’t put it past USADA’s legal team.

So, whether Leogrande is John Doe or not, USADA is pulling a procedural fast one in order to make a case against the cyclist involved. Eddie Pells’ story points in the direction of Kayle Leogrande, but there are many questions left unanswered.

In relation to Leogrande, TBV raises some interesting points:

There are time limits in the USADA protocol from the report of an A sample. This means one of the following must be true.

1. There were no positives from [Superweek], as the reported suit implies.
2. There were inconclusives from [Superweek], which the USADA rules and the WADA Code don’t really address, but which probably ought to be treated as negatives as in scenario #1.
3. There were positives from [Superweek] that USADA did not pursue in a timely fashion. Were they overruled by the Review Board, or was there some exercise of previously denied prosecutorial discretion?

If there were no positives, (#1 above, and by extention, inconclusives #2) then there can be no AAF case under the WADA code. That is what the suit appears to be arguing.

Using the loophole invented in the Landis case, it’s plausible that USADA is using its effective ownership of the samples to do B tests that would support a non-analytical finding. USADA has never before, to our knowledge, attempted to use analytical evidence to support a non-AF, which have previously been from testimony.

Assuming that the rumors of Leogrande testing positive during Superweek are actually true, how is it that USADA would just be getting around to prosecuting the case almost six months after the offense occurred? And, if Leogrande is Doe, how do we reconcile the fact that Doe was told in November that his A sample was negative with what’s happening now? (My guess is that USADA is taking an approach similar to what I’ve outlined above.) Would it really take four months for USADA, most likely using the UCLA lab, to determine that a violation had or hadn’t happened? Given the UCLA lab’s reputation, that seems a little hard for me to believe.

TBV offers some good insights into the intricacies of this situation. Take a look at what he’s written, if you haven’t already. This is going to be a very interesting case to watch.