Well, it’s been a bit over a week since I posted part one of my interview with Mike Straubel, so perhaps it’s time to get on to part two. There has certainly been an interesting discussion going after I posted the first half.
Before getting to the second act, however, it’s been an interesting week in the world of doping and doping allegations. One story that caught my eye were the latest two positive cases from the Beijing Olympics. Two Belarussian hammer throwers apparently have tested positive for testosterone, meaning that the medals in this event will be redistributed for the second consecutive time due to doping allegations.
Marion Jones got out of jail this week, after having served almost all of her six month sentence for lying to Federal agents investigating a check-kiting scheme that involved her former boyfriend Tim Montgomery. Jones still has to perform 800 hours of community service, and complete two years of probation before the entire episode is behind her.
The Beijing Paralympic Games started this weekend, where Canadian athlete Jeff Adams, who lost almost two years of his career fighting to clear his name after being charged with a doping offense in 2006, is set to compete. Adams successfully defended himself and will be race in the 1500-meter wheelchair event. When I find out the schedule, I’ll post more information about how you might be able to view coverage of his events. In the meantime, good luck to Jeff. I hope he brings back a gold medal.
And rumors are afloat that Floyd Landis will be on the HealthNet cycling team next year, once his suspension ends. Somewhere I saw Michael Ball, of Rock Racing fame, quoted as saying Floyd is too expensive for his team. Really? A team that has a Roller as its team car can’t afford Floyd? I’m shocked. Shocked, I tell you.
Anyway, we’ll get back to the world of doping stories after concluding the interview with Professor Straubel …
DR: How did you get started in sports law? What drew you to it?
MS: I’ve taught international law for a while, and I also coach at the university. I coach cross country and track.
… Having been involved in athletics and advising students “don’t take this stuff, don’t do that” and how a lot of it hit the track world, track and field back in the 90s and early 2000s, I eventually got interested in it and started doing a lot of research in the area and switched over to teaching sports law. I come at it more from an international perspective. I really enjoy the Olympic movement and what goes on at the international level as opposed to just the domestic US sports.
DR: Was the Sports Law Clinic kind of an outgrowth of your interest in sports law, or was there something more to setting it up than just that?
MS: At the law school we were putting on conferences every so often and I had the responsibility of putting a conference in the area of international sports law dispute resolution. Actually, I had John Ruger, the ombudsman of the USOC come and speak as one of the panelists. At that time, or actually earlier, he had mentioned that there was this problem of mostly Olympic movement athletes in the minor sports who were having quasi-legal problems like this that couldn’t afford attorneys. And he thought some athletes were just basically getting the shaft because they didn’t have the ability to represent themselves. So, I talked to the dean and said there’s this need out there and nobody’s filling it and maybe we can start to do it.
DR: I have a question for you about one of the attorneys for the USADA side. From my perspective … there’s something odd to … seeing the architect or one of the main authors of the anti-doping code serving as a prosecutor in this instance, but potentially as an arbitrator in other instances.
MS: You’re speaking of Rich Young?
DR: Yes, I’m speaking of Rich Young. I think he’s probably a very good lawyer and a very strong advocate for the side he chooses to be on, but … I don’t want to say it’s unethical … but it seems, there’s something that to an average person doesn’t seem right.
MS: You’re correct. And that’s been a criticism long made of the CAS system and the USADA/AAA panel system. It needs rules that keep people from crossing over and performing functions that are seemingly contradictory. I’ve actually written a law review article [Rant’s Note: It’s 70 pages long but well worth the time.] that talks about this a little bit because I’ve noticed that a lot of times, particularly in CAS hearings someone will in one situation will appear as an advocate and then a little bit later appear as an arbitrator. And you have to wonder if that doesn’t affect the way in which they decide cases, and the way in which they argue cases.
DR: I certainly haven’t looked into it, but the CAS system is not the largest system in the world, and the chances of, say, Richard Young working with one or more of these other gentlemen in a different capacity in the future strikes me as pretty good.
MS: Right, and I’ve actually in situations expressed that thought to Travis Tygart and a couple of other policymakers that this really ought to be changed. And USADA and the AAA did try to deal with that a bit when they purged the original list of arbitrators that were hearing cases in the United States.
DR: Interesting.
MS: Yeah. They [purged the list of arbitrators] once. It’s better than it used to be. There’s a lot less of that connection of arbitrators with one side. But one of the arbitrators that’s been sitting on a number or recent cases is the former general counsel for the US Olympic Committee.
DR: That strikes me as kind of a vested interest or a conflict of interest in some regards.
MS: I think it is. I think it is. And the system is always going to be a little like that as long as that’s permitted.
DR: It seems like the avenues of defense for an athlete charged with an anti-doping violation are rather slim. I’m wondering, in terms of arguing an ISL violation has [the Landis] decision narrowed the avenues that an accused athlete could actually pursue, or is it just one individual decision that won’t have much precedent on any others?
MS: I think it’s going to have a fair amount of precedent and the one thing that … it reinforced, and is a little of a concern to me, is the principle that the ISL cannot be challenged in any way. You can’t challenge them to show that they really don’t reflect the best science or that they actually can produce bad results. You can’t attack those ISLs. It’s almost a closed system. WADA makes the rules and enforces the rules and you can’t challenge those scientific conclusions they’ve reached.
DR: What’s your assessment of the chances of an innocent athlete actually proving his or her innocence under the current rules. Is it possible?
MS: I guess I have to qualify that in a couple of ways. The first one is the notion of strict liability, which is the foundation of the World Anti-Doping Code. [Strict liability] is going to result in a lot of athletes who accidentally, unintentionally ended up with some banned substances in their systems [being sanctioned]. So, in that sense, athletes who have no intent to cheat are going to be found guilty of a doping violation and punished.
DR: That sounds like the Alain Baxter case.
MS: Yes. Yes it is. And the Lund case, too … Absolutely accidental, no intent to cheat and really no benefit, no performance enhancement, but they’re still being punished.
DR: That doesn’t seem right.
MS: Yeah, that’s troubling. As far as an athlete who tests positive and actually didn’t have anything in their system, I think that the incidence of that happening is gradually being reduced. But I think it’s being reduced largely because there are people that are pushing the system and telling why they really have got to make sure you’re doing it right. The biggest danger, and the Landis case kind of points out, is different standards of quality at the labs. There are some labs out there that are just a lot better than others.
… And the rule that says the As and Bs have to be tested at the same lab, I think needs to be changed. I think they need to have the A sample done at one lab and the B sample done at another.
DR: I agree with you, I think that separate labs should be doing the countertesting, which also would reduce the possibility of a Landaluce or a Jenkins kind of situation, where the same person’s involved in both.
MS: Right. Or, to be the most conspiracy-minded or cynical, is … and the Landis case raises this issue a little bit when they made the argument that the person, the lab techs running the B know that the A was positive and know that their lab did the A. There’s just this apparent sort of conflict of interest or suggestion of potential impropriety in that [they] have a vested interest in making sure that the B comes out and matches the A.
DR: It’s also a phenomenon known as experimenter bias. They already know what the result is supposed to be, and the chances are that they’ll get the result even without any underhanded efforts to prove themselves right.
MS: And that’s why … I don’t know if it worked during the Jenkins hearing, I called the ISL we were arguing over the “double-blind” rule. It was designed to embody that idea of two tests blind of each other.
DR: And that, I think, would go a long way. What about the idea that we hold the athletes to the standard of strict liability, but it seems like labs that occasionally mess up or occasionally leak results to the press or things like that as a general rule don’t get punished. Would it be fair that if the athletes have to live by the strict liability standard, that the labs and the anti-doping agencies should be held to the same standard?
MS: That’s what we argued and I think that the panels in the Landaluce and the Jenkins decisions have said: “The penalties here are pretty serious. We’re got to make sure that the labs are doing things at the highest professional level they can. And when they aren’t, … we’re going to throw the results out.” And that was coupled with the idea that we argued that there’s no way we could dig into what happened at the lab and go to that next level of showing an intentional screw-up. The rule was prophylactic. It was designed to prevent those kinds of possibilities, and whenever it’s breached, you have to say, in a sense, “yeah, it’s breached and we throw the results out.”
DR: If you had to design the adjudication system for anti-doping cases, what changes would you make?
MS: The first thing I would create is a smaller, permanent, full-time panel of arbitrators. Quite often they draw these arbitrators from groups of people that don’t do this full time. So either they can’t devote full energy to it, or their background makes them a little less informed than they should be about what goes on. I’d certainly do away with a lot of the conflicts of interest we’ve talked about, and appearances of impropriety. And I would create a more pyramid-like structure, in which there is one tribunal that is going to decide the conflicts that can develop between different rulings at lower levels. That’s just the pure adjudicative machinery. I think it’s a whole other matter about the way WADA writes its rules and who gets a say in writing the rules. I think that the athletes have very, very little say in how the rules get drafted. They really don’t have an effective, powerful voice – the kind of voice that the unions do in the US pro sports.
DR: That does seem to be a problem. Even though cycling is a professional sport, and there’s a quasi-riders union, but it’s not a very effective one.
MS: Right. So when you hold the conferences and the debates over what the code should say, there’s no strong representation with some power there from the athletes.
DR: Do you think that strict liability is really a fair concept to foist on the athletes at all? It seems like in the case of Lund and in the case of Baxter, clearly there was no intention to enhance their performances there. And yet they still got popped for a doping violation. Is that something that should be within the system, or is that something that should be done slightly differently?
MS: I think there’s kind of a middle ground that should be struck. I understand the value of strict liability, because forcing USADA or WADA to prove that you intentionally did this is a really tough burden. I think that the reverse could be true. That if an athlete can come forward with really strong, maybe beyond reasonable doubt level of evidence that there was no intent, that they shouldn’t be charged with a full doping offense. I think that may result in voiding the results of that one competition, because there was a substance in your body that enhanced your performance.. But tagging you with a doping offense – and even a suspended kind of sentence could happen in a few situations. Still, it’s bad, because you still have that first strike. So you have another doping offense and it’s [the next ban is] for life.
DR: That’s sort of what Justin Gatlin was fighting against.
MS: Exactly. You know, Gatlin came to us and we talked to him, but we had a conflict of interest, so we couldn’t take his case.
DR: That’s a shame. It seems like your team is a pretty sharp group of lawyers and law students.
MS: I hope so.
DR: Well, you are the only group so far that’s beaten USADA at their own game. That’s a pretty good accomplishment.
MS: Well, thank you.
DR: I appreciate your time this evening.
MS: No problem.
