LA Times article/ Attacking dope testing

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http://www.latimes.com/news/nationworld/nation/la-sp-doping10dec10,0,2627563,full.story?coll=la-home-headlines

Athletes' unbeatable foe
Anti-doping authorities serve as prosecutor, judge and jury. The innocent often pay a high price.
By Michael A. Hiltzik, Times Staff Writer
December 10, 2006

PART 1
http://www.latimes.com/news/nationw...0,0,2627563,full.story?coll=la-home-headlines

The worldwide sports anti-doping program, created to fight performanceenhancing drug use in international athletics, imposes severe punishments for accidental or technical infractions, relies at times on disputed scientific evidence and resists outside scrutiny, a Times investigation has found.
Elite athletes have been barred from the Olympics, forced to relinquish medals, titles or prize money and confronted with potentially career-ending suspensions after testing positive for a banned substance at such low concentrations it could have no detectable effect on performance, records show.
They have been sanctioned for steroid abuse after taking legal vitamins or nutritional supplements contaminated with trace amounts of the prohibited compounds. In some cases, the tainted supplements had been provided by trusted coaches or trainers.
The findings emerge from a Times examination of more than 250 anti-doping cases involving runners, cyclists, skiers, tennis players and competitors in dozens of other sports from around the world.
Alain Baxter, 28, became the first Briton to win an Olympic medal in Alpine skiing, placing third in the slalom at the 2002 Winter Games in Salt Lake City. Two days later he tested positive for methamphetamine, a banned stimulant. He was forced to forfeit his bronze medal.
His offense? He had used a Vicks Vapor Inhaler bought in Utah to treat his chronic nasal congestion. Unlike the Vicks inhalers sold at home, the American version contained traces of a chemical structurally related to meth — though lacking its stimulative qualities.
Despite testimony from a Vicks scientist that the compounds differed, an arbitration panel hearing Baxter's case ruled that because anti-doping authorities regarded the chemicals as related, he was guilty.
"It never crossed my mind that it would be different from the British one," Baxter told the BBC upon returning home. "I didn't think I was doing anything wrong."
A 17-year-old Italian swimmer treating a foot infection with an antibiotic cream her mother bought over the counter failed a doping test at a swim meet in 2004. Neither Giorgia Squizzato nor her mother realized that the cream's ingredients included a prohibited steroid — or that applying it between her toes could result in a positive urine test.
Arbitrators in her case acknowledged that "the cream did not enhance the athlete's capacity" and hadn't "favored her performance."
Nevertheless, according to the anti-doping program's zero-tolerance, or "strict liability," policy, which treats an athlete as guilty regardless of how a substance got into his or her body, Squizzato was judged negligent. Her penalty: a one-year suspension.
Stringent anti-doping measures have become a fact of life for the thousands of athletes participating in national and international events since the creation of the World Anti-Doping Agency, or WADA, at an international sports conference in 1999. WADA's founding was prompted by a rash of doping scandals threatening the credibility of global sports.
What has evolved to protect competitive purity since then is a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals or challenges.
WADA's authority stems from the World Anti-Doping Code, which has been adopted by 186 governments, including the United States, and hundreds of Olympic and international athletic organizations. Under its provisions, athletes competing in sanctioned events are subject to mandatory urine and blood testing at any competition.
Athletes also must submit to unannounced random tests and provide authorities with detailed calendars showing where they can be found at any time, even on vacation.
A test sample is typically divided into two vials, labeled "A" and "B." The "A" sample is the first to be tested. If it comes up positive for a banned substance, the athlete may demand a confirmation test of the "B" sample. If that is also positive, the code allows the agency to declare the athlete in violation of doping rules and impose a penalty ranging from a public warning to a lifetime ban. Generally, the athlete also is disqualified from the event at which the violation allegedly occurred.
An accused athlete's only recourse in the face of a doping charge is arbitration, under rules of evidence dictated by WADA and designed to give the authorities the benefit of all doubt.
In many countries, including the United States, athletes have no right to appeal an adverse arbitration ruling to the courts. In the vast majority of cases, including every case heard in the U.S., the arbitrators have upheld the violation.
Tests for banned substances may be performed only at one of the 34 labs around the world accredited by WADA. Athletes are not permitted to have their samples tested at any lab outside the agency's system. The rules also prohibit WADA labs from doing any tests in defense of an accused athlete.
WADA Chairman Richard W. Pound, 64, a Montreal lawyer, argues that the program must be so stringent and uncompromising to be effective against doping, which he calls "the biggest threat to sports."
"The less discretion there is in the finding of a doping offense, the better it is," he told The Times in an interview.
Pound, a former competitive swimmer who finished just out of medal contention at the 1960 Summer Olympics in Rome, dismissed the notion that a significant number of doping cases are accidental or inadvertent; WADA policy states that every athlete is responsible for everything he or she ingests or applies to the body. In the case of adulterated supplements, he said, "If you didn't know what was in there, it's your own damn fault." In the rare cases that an athlete can be proved truly faultless, he added, the system is flexible enough to temper its penalties.
"If you're captured by a squad of Nazi frogmen and injected with a steroid, you're going to be found positive," he told The Times. "But it wouldn't be a two-year suspension."
The effect of a doping allegation on an athlete's life is immediate and crushing.
"For people who have never had to deal with something like this, it's hard to grasp what it takes away from you," says Rachael Burke, 23, a swimmer at the University of Virginia, whose urine sample turned up in May 2004 with a trace of boldione, an obscure steroid, possibly from a contaminated nutritional drink. Burke had never had a positive result in any other test in more than a decade of competitive swimming.
"You have no idea what happened," she recalled in an interview. "You have no control over the fact that they are going to announce to the entire public that Rachael Burke, this girl that everyone has seen grow up in the spotlight, has tested positive for steroids. The next day, you have to walk on the pool deck and people are saying, 'I wonder if that's why you were so good when you were 8 years old.' You're accused and convicted without a chance to defend yourself."
Concerned that fighting the charge would cost her family tens of thousands of dollars in legal and professional fees and that the arbitration rules were stacked against her, she eventually agreed to a two-year suspension. The sanction knocked her out of international competition, but preserved her right to swim in NCAA events.
Cases like Burke's undermine the program's credibility, says John Ruger, a former Olympic biathlon competitor who serves as athletes' ombudsman of the United States Olympic Committee in Colorado Springs.
He asserted that the anti-doping system sweeps up "two, three, five people every year who are not intentionally cheating."
Ruger added: "If the anti-doping program is to succeed worldwide, athletes have to believe it's a fair process."
Travis T. Tygart, general counsel of the U.S. Anti-Doping Agency (USADA), WADA's largest national affiliate, disagrees with Ruger's figures. He said the agency goes to great lengths to ensure that only the guilty are punished. He said about 20% of all its potential cases are tossed out, leaving only those USADA regards as irrefutable.
"We're not in this to falsely accuse," Tygart said.
He and other anti-doping officials maintain that underground efforts to cheat with new "designer drugs" are a continuing problem, an allegation reinforced by revelations in the Bay Area Laboratory Co-Operative, or BALCO, case.
The lab allegedly provided dozens of professional and amateur athletes with undetectable performance-enhancing treatments. Through 2004, USADA said, 13 athletes had been sanctioned under WADA rules based on testimony and evidence in the BALCO case, including some who never tested positive for any steroid.
Yet the international anti-doping program's own statistics cast some doubt on the concerns expressed by Pound and other officials about a sports world awash in drugs. Of USADA's thousands of tests per year, fewer than 0.5% have produced sanctions. Many of those were for prescription medications or substances with little or no performance-enhancing effect.
In 2005, for example, USADA conducted 8,175 tests and imposed sanctions on 20 athletes. Its testing program consumed $5.6 million that year, or 47% of a $12-million budget funded primarily by Congress.
Today the program is facing unprecedented controversy, the result of several high-profile cases.
One involves American sprinter Marion Jones, accused of failing an initial doping test last summer. She immediately rushed home from an international track meet in Switzerland. When her second "B" sample came up negative, the case against her appeared to collapse.
The case remains open, however. Pound has infuriated Jones' supporters by suggesting the negative second test may have been flawed. He told BBC radio he was worried "that someone is misinterpreting things or doing things wrong."
In another simmering controversy, California cyclist Floyd Landis, the 2006 Tour de France champion, is appealing USADA's charge that he doped with testosterone during the July endurance race. He denies taking any performance-enhancing drug and is demanding a public arbitration hearing.
Landis also has posted online (at http://www.floydlandis.com ) the laboratory evidence against him, giving the public a rare inside glimpse of a doping dispute and the science behind it.
The records show, for example, careless bookkeeping errors. Samples attributed to Landis were recorded under several incorrect serial numbers. Also, results from multiple tests on the same samples, all by the same Paris lab, produced markedly inconsistent results.
The Landis camp contends the documents prove he is innocent. "There is no basis for a positive test," says Arnie Baker, a San Diego physician and cycling coach. He is consulting for the Landis defense. "How it got this far in the first place, I have no idea."
'A closed system'
Nestled among industrial shops on a short block in West Los Angeles, just across from a Bed Bath & Beyond, is the world's preeminent sports anti-doping laboratory.
The nondescript three-story UCLA Olympic Laboratory is the domain of Don H. Catlin, a professor of molecular and medical pharmacology at UCLA Medical School who has made the fight against sports doping his life's work.
Holding contracts not only with WADA but with the National Collegiate Athletic Assn. and the National Football League, the UCLA lab performs nearly four times as many blood and urine tests as the global runner-up, in Cologne, Germany. Its work is commonly considered the gold standard of sports doping science.
For all his expertise, however, Catlin is forbidden by WADA rules from testifying in defense of an athlete in a doping case. He and the lab's more than 40 employees are prevented by WADA rules from engaging in "testing or expert testimony that would call into question … the scientific validity of work performed in the anti-doping program."
Despite WADA's claims of "public transparency and accountability," it operates largely as a hermetically sealed scientific community with minimal public oversight.
WADA pays labs, usually one of those in its network, to develop tests for banned substances. It then is the sole arbiter of the test's scientific validity.
WADA determines threshold levels at which traces of a substance are deemed a violation.
And under WADA rules, the same lab that performs a positive test on an "A" sample also must conduct the confirming test on the "B" sample.
"You have a closed system where very few people in the world know what the science is, and the system has a vested interest to make sure its findings are confirmed," says David L. Black, president and chief executive of Nashville-based Aegis Sciences Corp., a large independent doping lab unaffiliated with WADA.
"The lab should just be a fact-gatherer, but the WADA system is designed in a way that the labs are not just objective fact gatherers, but part of the body of prosecution," Black said.
The EPO riddle
No test in WADA's arsenal has drawn as much fire as its assay for synthetic erythropoietin, or EPO — a hormone that increases stamina.
EPO doping has been banned since the 1990s, when the synthetic version began to be used by athletes to improve their stamina. A urine test to identify artificial EPO was introduced in 2000 and has been refined several times since.
It is not a simple test. It can require 36 hours, scores of laboratory steps, sophisticated machinery and a high level of technical skills.
Unlike tests that produce empirical measurements or unmistakable indicators, such as litmus paper, the EPO test involves a significant level of interpretation. Because natural and synthetic EPO produce similar readings in the lab, even experienced technicians viewing the same results can differ in their conclusions.
Results also can be clouded by other natural substances in the sample or by poor lab technique.
"It's a more difficult test than others in that it doesn't give you a fingerprint," Catlin acknowledged in an interview, saying "the EPO test needs more work." However, he also called it "safe and defensible — we would not practice it if it were not."
Yet Catlin's lab produced perhaps the most conspicuous contradictory finding in an EPO test, leading to the apparent collapse of the doping case against sprinter Jones. The UCLA lab's test on her "B" urine sample failed to confirm its own positive finding on her "A" sample.
Catlin says the case represents the first such mismatch in an EPO test by his lab. He declined to discuss it further, because the matter is under investigation by WADA.
But Allen K. Murray, an Irvine biochemist who witnessed the confirmation test on Jones' behalf, says her "A" sample should never have been declared positive in the first place.
"I have very serious questions about the 'A' result," he said, arguing that the quantity of the sample in the "A" test was too low to give a clear reading and that the lab interpreted the relatively faint image too aggressively.
At worst, he said, the initial test should have been declared inconclusive.
Jones's case was not the first flub involving an EPO test.
In 2003, Kenyan distance runner Bernard Lagat was charged with EPO doping after a race in Switzerland. The charge was dropped when his "B" sample proved negative.
Evidence uncovered by Lagat's defense team revealed his sample had been grossly mishandled — transported for hours in a car at temperatures sometimes exceeding 100 degrees, then inadequately cooled at WADA's Cologne lab. His experts testified that those conditions promoted chemical reactions in his urine sample that could have produced a false positive result.
They cited numerous other shortcomings in the EPO test that they say rendered it prone to false positives.
Lagat, who had been suspended by Kenyan sports authorities and barred from the world track championships after the initial finding, was reinstated in time for the 2004 Olympics, where he won the silver medal in the 1,500-meters event.
But with his lawyers contending that Lagat's "reputation will be tarnished by the doping suspicion for the rest of his life," he sued WADA and international track authorities in a German court. He demanded about $650,000, the value of potential prize money and sponsorship contracts he said he lost during his suspension.
The German court ruled that it did not have jurisdiction in the case.
Meanwhile, after Belgian triathlete Rutger Beke was charged with EPO doping during a 2004 race, scientists from a Belgian university tested the hypothesis that under certain conditions, intense exercise by some athletes could produce a positive EPO test in the absence of doping.
The test was instrumental in persuading a Belgian court to nullify Beke's doping charge, one of the rare cases in which WADA's science was tested in court — not its own arbitration regime.
It remains the rarest of WADA cases: overturned.
Nandrolone cases surge
Beginning in the late 1990s, anti-doping authorities saw a surge in positive tests for substances related to the powerful steroid nandrolone, a phenomenon that would pose a special challenge for WADA's program.
The reason was that WADA's own scientists knew that many cases were unintentional. Athletes, like the general public, were unaware that nutritional supplement makers were selling products contaminated with traces of nandrolone and other banned substances.
A statistical surge in nandrolone cases "allowed the testing program to puff out its chest and say, 'Look at how much we're doing,' " said Charles Yesalis, professor emeritus of health policy and administration at Penn State University and a leading expert on drug abuse in sports.
Studies performed by UCLA's Catlin and by researchers at the Cologne lab, then under the International Olympic Committee, showed in 2000 and 2002 that a wide range of nutritional supplements commonly taken by elite athletes were contaminated with nandrolone and other steroids.
Catlin's research, furthermore, made clear that it was not difficult for tests to distinguish a contamination victim from a cheater. His paper noted that an athlete taking nandrolone in a determined effort to cheat would show levels higher than 100,000 nanograms per milliliter, or parts per billion, of urine.
WADA's threshold for a doping violation, however, had been set in single digits: 2 parts per billion for men and 5 for women. It remains at that level today.
And anti-doping officials have continued to bring cases against athletes for positive tests almost certainly derived from contamination or for steroid levels that could not possibly have any performance-enhancing effect.
Irvine swimmer Kicker Vencill, for example, proved through lab tests in 2003 that the supplements he had taken were contaminated, causing his violation. He later sued the supplement maker in state court and won a $578,635 judgment.
Vencill appealed his suspension from international competition, but arbitrators concluded that the unwitting contamination of his multivitamins by the manufacturer did not relieve him of liability for consuming any banned substances.
"The evidence shows that the presence of a prohibited substance in the athlete's urine was caused by his ingestion of a prohibited substance — whether in a vitamin, a supplement or otherwise — for which the athlete bears complete responsibility."
The arbitrators upheld his two-year suspension, agreeing with USADA that he should receive the maximum penalty, "just as in any case of … 'intentional doping.' "
"In their opening and closing statements, USADA said they were going to prove me a cheater," said Vencill, recalling his arbitration hearings. "It's a war in there, and you're fighting for your character and your integrity."
Anti-doping officials are unapologetic about the nandrolone cases and officially skeptical of explanations of innocence.
"You've got to hear these things over and over again to understand what a mantra it is," Pound scoffed in an interview. "You've got to say, 'Come on. Get over it. You're filled with nandrolone.' "
But there also are hints of internal disagreement. One of the program's arbitrators agreed with an accused athlete that she had ingested trace amounts of nandrolone unintentionally in adulterated vitamins.
American cyclist Amber Neben had tested positive for a concentration of 6.9 parts per billion of the steroid after a Montreal race, 1.9 over the limit for women — but vastly short of any potential performance-enhancing effect.
Arbitrator Christopher L. Campbell favored imposing no penalty, arguing that the fight against doping should not harm "innocent victims of a poorly regulated vitamin supplement industry."
Campbell was outvoted. By a 2-1 margin, the arbitration panel suspended Neben for six months.

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(INFOBOX BELOW)
Who's in, who's not
Signatories to the World Anti-Doping Code include the Olympic movement and 78 international sports governing bodies. Here is a partial list of athletic organizations and events subject to the code's regulations, along with some notable exceptions.
Covered by WADA rules
All Olympic events
All Paralympic events
Commonwealth Games
World Cup*
Tennis Grand Slam events:
Wimbledon, French Open,
Australian Open, U.S. Open
Davis Cup
Tour de France
U.S. Tennis Assn.*
International Assn. of Athletics Federations (track & field)
International Basketball
Federation
International Gymnastics
Federation
International Hockey
Federation
International Triathlon Union
International Swimming
Federation
International Table Tennis
Federation
World Taekwondo Federation
World Bridge Federation
International Chess Federation
* Subject to their own anti-doping rules
Not covered
Major League Baseball*
National Football League*
National Basketball Assn.*
National Hockey League*
Major League Soccer*
National Collegiate
Athletic Assn.*
Professional Golfers Assn.
Ladies Professional Golf Assn.**
U.S. Golf Assn. (U.S. Open)
British Open (golf)
* Maintain separate anti-doping programs
** Will begin drug testing program in 2008
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(INFOBOX BELOW)
What's banned?
Substances banned by WADA include:
Anabolic steroids
Effects: builds strength,
facilitates training
Examples: stanozolol,
testosterone
Hormones
Effects: improves red blood
cell count, stamina, training
effectiveness
Examples: erythropoietin (EPO), human growth hormone
Stimulants
Effects: combats fatigue,
improves reaction time
Examples: adrenaline,
methamphetamine
Masking agents
Effect: conceals presence of steroids in urine
Examples: diuretics, epitestosterone
Source: World Anti-Doping Agency

 

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http://www.latimes.com/news/local/la-me-doping11dec11,0,2817972.story?page=1&coll=la-headlines-california

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.
By Michael A. Hiltzik, Times Staff Writer
December 11, 2006
Second of two parts



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.

They conceded that they had reached their decision "with a heavy heart": Although Lund had faithfully disclosed his medication on anti-doping forms at every event, no official had ever alerted him to the change in finasteride's status.

"The panel finds this failure both surprising and disturbing, and is left with the uneasy feeling that Mr. Lund was badly served by the anti-doping organizations," they wrote. Still, under the rules, the best they could do was impose the minimum one-year sanction.

A perfect record

USADA has never lost an arbitration case in its history, a record that spans six years and more than 40 proceedings. Authorities call that record a testament to their skill at bringing only bulletproof cases.

"If you're a clean athlete, you have nothing to worry about," says Travis T. Tygart, the agency's general counsel. "We don't proceed if it's not a doping case."

USADA Chief Executive Terrence P. Madden dismisses criticism of the arbitration process as sour grapes from athletes' lawyers.

"These are the same old tired arguments that we've heard for six years, and it's the same defense counsel who bring them up," Madden said.

Madden and Tygart contend that the agency's advantages in the arbitration system only compensate for its lack of governmental powers, such as subpoena authority. Athletes "want a set of rights that far exceeds the powers we have," Tygart says. "They say you have to give them constitutional due process. If that's so, then give us search-and-seizure powers to balance out that right."

But criticism of the process is more widespread than they acknowledge. Even some arbitrators are uncomfortable with the system.

"It's not serving the purpose it was meant to — to give the athlete a real opportunity to be heard," says one long-term doping arbitrator who did not want to be named so as to avoid internal controversy.

Pushing back

Arbitrators staged a rare revolt against anti-doping rules last summer in the case of Mariano Puerta, an Argentine tennis player who had accidentally ingested a tiny amount of a banned stimulant just before playing in the French Open. Puerta faced an eight-year suspension, which the panel considered tantamount to a lifetime ban for the 26-year-old athlete — "a result that is neither just nor appropriate," the panel wrote.

They agreed that Puerta's positive test resulted from his unwittingly sharing the same water glass that his wife had used for her medication.

Arguing that an appropriate penalty did not seem to be contained within WADA's rules, they fashioned their own solution by imposing a two-year ban. "The panel is not persuaded … that it is necessary for there to be undeserving victims in the war against doping," they explained.



But Puerta's case is unique. Only three times has an arbitrator in a U.S. case even filed a dissent. All three were by the same arbitrator: San Francisco lawyer Christopher L. Campbell, a former Olympic wrestler often selected as an arbitrator by athletes.

One of Campbell's dissents came in the case of Kyoko Ina, a U.S. figure skater accused of refusing a drug test late one night. Evidence showed that a USADA official had led her to believe the test could be rescheduled for the next day. Because of the misunderstanding, she was threatened with a four-year suspension, despite never having failed a test or been suspected of doping.

"When any organization, including [USADA] turns this fight against doping on innocent athletes, that behavior is unacceptable," Campbell wrote.

Ina negotiated a two-year suspension and subsequently joined a professional ice show.

The current arbitration system took form after the creation of WADA in 1999, when sports organizations concluded that a unified anti-doping regime was preferable to the patchwork of national and sports-specific policies then in effect.

The tilt toward the prosecution in arbitration cases begins with the selection of arbitrators themselves. The rules require all arbitrators to be accredited by the Swiss-based international Court of Arbitration for Sport. In the U.S., the initial appeal by an athlete is heard by members of the court's North American branch. Any subsequent appeal is heard by panelists selected from the court's international membership.

Many arbitrators have current or prior professional relationships with USADA, WADA or other sports organizations that frequently serve as the prosecution in anti-doping cases.

Of the 45 members of the North American branch, at least 24 have such affiliations. They include Richard Young, an outside counsel to USADA, and WADA Chairman Richard W. Pound. Although neither has arbitrated a doping case, athletes' attorneys say their mere membership in the sports arbitration pool fosters an impression that the system is slanted against them.

In 2001, USADA staged an expense-paid visit for all accredited arbitrators and their spouses to the UCLA Olympic Analytical Laboratory, the leading WADA lab in the world. The session, attended by 22 of the 38 arbitrators then in the North American pool, featured presentations by USADA officials and Don H. Catlin, the lab director, capped by a night out at a Santa Monica restaurant.

"The arbs are jurors," says Edward G. Williams, an athletes lawyer who contends the session was tantamount to "a bribe."

"I've said anyone who went through that session should be disqualified," Williams said. "I always lose that argument."

The most powerful element tilting the process toward the prosecution is the presumption that the agencies' scientific tests are valid and that the work of WADA's accredited laboratories, which perform all the blood and urine tests, always meet international standards. The presumption is written into the WADA Code.

The presumption shifts the burden to the athlete to prove that the lab's work fell short of scientific standards and that its failures affected the outcome. The effect is to render the athlete guilty unless proved innocent. That's a reversal of the situation in a U.S. court of law, where prosecutors carry the burden of proof from start to finish.

"The athlete is being held accountable, but the lab can have a series of small errors and is not held to a strict liability," says David L. Black, president of Aegis Sciences Corp., a Nashville-based independent doping lab. "No deficiency in the lab performance ever seems to rise to the level of impeaching their finding."

Adding to the perception of bias are frequent leaks disclosing the names of athletes under investigation and public statements by anti-doping and sports officials asserting the athletes' guilt, even before appeals have run their course.

Earlier this year, for example, Pound suggested that former Tour de France champion Lance Armstrong had been guilty of doping in 1999. He based his comments on disputed and supposedly confidential research data compiled by WADA's Paris lab.

"It's a case that has to be answered," the WADA chairman said about what he called "documentary" data linked to Armstrong. His statements, along with other comments from sports authorities, drew rebukes from inside and outside the agency.

"Pound shoots at everything that moves," complained Hein Verbruggen, president of the International Cycling Union.

Losing trust

Scott Burns, an American member of WADA's executive committee, also objected. According to minutes of the September 2005 committee meeting, he complained that it was "the antithesis of what was done at WADA … to speak out or speculate precipitously, especially in public." As a result, Burns said, WADA risked having "lost the trust of athletes."


Another problem facing athletes is the limited availability of independent experts such as Black. A WADA rule prohibits members of its 34 accredited laboratories from testifying in defense of an athlete in a doping case.

The rule exists to shield the WADA labs from political pressure that might be exerted on behalf of a high-profile athlete from their own country, said Olivier Rabin, the agency's medical director.

Still, it reserves the expertise of most of the top doping scientists in the world for use exclusively by the prosecuting agency.

"It's difficult to establish the credibility of our experts when they go up against people who do this every day for a living," said Michael Straubel, a law professor at Valparaiso University in Indiana who has defended numerous athletes.

Athletes' attorneys also face obstacles obtaining technical documents from the agencies. Under USADA rules, the agency is required to produce only records concerning the specific test performed on the athlete's own sample.

Not included are documents that might shed light on a WADA lab's general proficiency or its treatment of other similar cases, arguably pertinent to defense questions about lab consistency or reliability.

Tygart calls the document package routinely shipped to accused athletes "fair and overly generous." The U.S. agency generally rejects requests for further data unless the athlete "can articulate a need that's not a fishing expedition," he says.

USADA's position will probably be tested by Tour de France champion Floyd Landis, who has been charged with testosterone doping in the 2006 race.

Jacobs, Landis' attorney, submitted a 10-page request in October for documents related to the Paris WADA lab's general experience with the testosterone screening. Landis hopes to challenge whether the French scientists "have sufficient expertise at running this test" and whether they can justify their criteria for declaring the cyclist's sample positive.

Tygart rebuffed Jacobs. "Every request you make appears to seek documents or information not called for by the rules," he wrote. The defense lawyer is expected to ask arbitrators to force the release of more documents.

Even when an athlete is able to present a detailed case, the WADA Code ties arbitrators' hands in several ways. For example, arbitrators are prevented from considering an athlete's intent when judging a doping charge.

Under the prevailing principle of "strict liability," the mere presence of a prohibited substance in a blood or urine sample is sufficient to establish the violation, even if it is proved that the breach was accidental.

"We are fact-finders, and we apply the law within the narrow strictures that we are given," says Maidie Oliveau, an experienced anti-doping arbitrator based in Los Angeles.

Arbitrators may overturn a proposed suspension only if an athlete can prove he or she bears "no fault or negligence." They may reduce a suspension, albeit by no more than half, if they find "no significant fault or negligence." The standards for such relief are ambiguous and "virtually impossible to meet" in practice, says Jessica K. Foschi, who studies legal issues in doping at Duke University Law School.

A suspension waived

In the seven years since WADA's founding, only one athlete out of hundreds who have been sanctioned is known to have met the "no fault" standard: Australian tennis player Todd Perry. He proved last year that a tournament doctor had refilled his legal asthma inhaler with a banned drug without notifying him.

Arbitrators waived Perry's two-year suspension. Though they also absolved him of fault, they let stand his formal reprimand. Under the agency's strict liability doctrine, Perry remained a violator for having an illicit substance in his system.

The strict liability standard applies even when a doping charge hinges on subjective interpretations of laboratory readouts. These include WADA's test for erythropoietin, or EPO, a hormone that promotes red blood cell formation.

Chances of a misreading are high, according to the technical literature and experts interviewed by The Times. Several recent EPO charges have been dropped because retests failed to confirm initial lab findings or encountered other testing flaws.

"Testing is far behind where it needs to be, but the rules don't reflect that," Foschi says



Foschi, who was accused and cleared of doping charges as a 14-year-old swimmer in 1995, criticized no-fault rules that require an athlete to prove how a substance entered his or her body to obtain a reduced penalty.

"The person who is most in trouble is someone who is genuinely innocent and has no idea how something got in his or her system," she said.

In her own case, she says, her sample was taken at an event in Pasadena, but she was not informed of the results until a week later, when she was competing across the country and the Pasadena venue had been dismantled. "By then it was impossible to go back and investigate."

Frustration with a harsh and rigid system may ultimately increase pressure for outside judicial review.

"There are cases where everyone doubts that justice has been done," says Bradley J. Andreozzi, a Chicago lawyer who has prosecuted and defended doping cases. He said the program is in danger of becoming "just a trap for the unwary."

But reforming the system could be costly. "The price of relaxing strict liability would be a period of less-stringent controls," said John Hoberman, an expert in doping policy at the University of Texas.

The cost of prosecuting authentic doping violations would go up, he predicted. "The payoff might be much better tests and not trampling on the rights of athletes who have all been thrown into one category labeled 'guilty,' " Hoberman said.

Many professionals within the system believe that the appeals process must become more flexible.

"We should have more discretion within certain parameters, such as in cases where there's no performance enhancement and no intent," said the longtime arbitrator, who asked to remain anonymous to avoid internal controversy.

USADA officials say they have proposed revisions to the WADA Code allowing arbitrators more latitude to reduce penalties in inadvertent cases — or to impose enhanced penalties in egregious cases.

But WADA's leaders are leaning in the opposite direction. Pound, for one, says the rules are already flexible enough to accommodate all situations that arise in individual cases.

"The system, as a system, is a pretty good one," he said. "It can be tweaked here or there, but we're not sitting down with a blank sheet of paper and redesigning the entire world anti-doping system."

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