For athletes accused of taking drugs, a Perry Mason of their own
Attorney Howard Jacobs, who has defended athletes from Marion Jones to US swimmer Jessica Hardy, believes the system is tilted too much toward antidoping agencies.
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Advocates say the regulations have become particularly important in an era when performance-enhancing drugs have spread everywhere from Major League dugouts to Pop Warner leagues. “It’s one thing to pretend that it only affects eight people in the 100-meter final at the Olympics, but it doesn’t,” says Dick Pound, WADA chairman from 1999-2007. “It goes all the way down the pyramid.”Skip to next paragraph
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Yet some critics such as Jacobs believe the WADA strictures are too inflexible and ensnare numerous athletes who aren’t trying to cheat. Take the case of Zach Lund. Going into the 2006 Olympics in Torino, Italy, Mr. Lund was the world’s top skeleton racer – one of those people who inexplicably launches himself head-first down an icy track on a sled at 80 m.p.h.
He had tested positive for a drug present in medicine he took to fight baldness, banned the year before because it can mask steroids. Lund, who had declared the drug on all his forms for years, was granted a reprieve from USADA and cleared for the Olympics. But WADA appealed the decision, and the case went to the international Court of Arbitration for Sport (CAS). Hours before the opening ceremony, Lund was kicked out of the Games – even though the CAS arbitrators agreed he had no intention of using illegal drugs. They said it was his responsibility to comply with WADA’s list of banned drugs.
Jacobs, Lund’s lawyer in the case, estimates that two-thirds of the nearly 50 athletes he’s represented have inadvertently taken a banned substance, such as Ritalin – a prescription drug that athletes with attention-deficit disorder (ADD) can take if they fill out the right paperwork, which they often don’t. “They’re not trying to cheat,” he says. “But they get caught up in the system, and they end up getting these incredibly long suspensions.”
Jacobs sees other problems with the oversight regimen as well. Unlike in US civil court, he says he doesn’t have the opportunity to question witnesses weeks in advance of a trial.
Often, the first time he hears the other side’s evidence is during the sports arbitration hearing – and he often has to respond without witnesses himself, unless his client happens to be a “toxicologist,” he says dryly.
“Howard ... just doesn’t know the science that I do and I can’t tell him what to ask,” says Dr. Don Catlin, a top antidoping scientist who has many times faced off with Jacobs. “That’s what’s wrong in our system of litigation. All the cards are stacked for USADA because they have money to pay and can purchase witnesses.”
But that can be difficult even with money. WADA’s code of ethics prohibits lab directors from providing “counsel, advice, or information to athletes regarding techniques or methods to mask detection” of banned substances – a standard Dr. Catlin, former head of UCLA’s Olympic Lab, interprets as an effective ban on testifying on behalf of athletes.