Attorneys for the U.S. athletes implicated in the Bay Area Laboratory Co-Operative (BALCO) drug scandal have been emboldened by the Justice Department's failure Thursday to negotiate a plea deal in its second meeting with BALCO owner Victor Conte, who was considered a crucial witness for the U.S. Anti-Doping Agency as it seeks to purge the 2004 U.S. Olympic track and field team of athletes who have used drugs.
The collapse of the second round of plea bargain talks, which took place during a 31/2-hour meeting in San Francisco, followed two unsuccessful attempts by USADA to secure Conte's cooperation, according to a source. Conte, his legal team and USADA officials met Dec. 23, 2003, near BALCO in Burlingame, Calif., and April 23 in San Jose, the source said.
The second USADA meeting took place immediately after another meeting between Conte and Justice Department officials. In both cases, Conte's lawyers -- who are seeking no jail time for Conte in exchange for information that would enable the United States to send a drug-free team to the 2004 Summer Games -- told USADA it had nothing to offer him, a source said.
"To clear up any tainted athletes going to the Olympics, that's what makes his testimony so important," said attorney George Walker, who represents track coach Remi Korchemny, who along with Conte and two other men was indicted in February on federal steroid charges. "He is the only man who is able to link athletes with steroids."
Earlier this week, U.S. Anti-Doping Agency attorney Travis Tygart said the agency might not close all of its investigations by the July 9-18 U.S. Olympic trials in track and field.
Tygart declined to comment yesterday on whether the agency was pinning its hopes on eventual testimony from Conte to help solidify its murkier cases, saying only that "in all cases that proceed forward, you hope to have as convincing and credible evidence as possible so the truth is relayed."
Meantime, with the U.S. trials in track and field just more than a month away, officials at the U.S. Olympic Committee, USA Track and Field and world track federation (IAAF) have been growing increasingly uneasy about the USADA's deliberate approach to sending out notification letters to athletes against whom charges are being considered, according to several Olympic officials. The formal notification sets off a rigid hearing process designed to be completed in 40 days, but which can be expedited.
"We have some very hard deadlines coming up in 30 days," said one official interviewed on condition of anonymity.
USADA officials, who have said they are aware of the time pressures but will not be rushed into bringing charges against any athlete, have met with Marion Jones, Tim Montgomery, Chryste Gaines, Michelle Collins and Kelli White, who accepted a two-year competition ban in exchange for her cooperation. No athletes, however, received notification letters yesterday, according to several attorneys and officials.
Lawyers for the athletes have said they will fight if their athletes are charged, and the process could become ugly and protracted if matters are moved out of the jurisdiction of the Court of Arbitration for Sport, the designated court for USADA hearings.
Jones has said she would sue if USADA tried to ban her from the Summer Games. Brian Getz, the attorney for Collins, said his client would take the case to the U.S. court system if she lost in arbitration.
"We will resist any effort to ban her from the Olympics," Getz said. "Certainly, people such as Michelle Collins are intending to prevail. . . . If we lose, we will seek injunctive relief in federal court after all internal remedies have been exhausted."
Cases involving a positive steroid test last summer for middle distance runner Regina Jacobs and a positive stimulant test for quarter-miler Calvin Harrison have been delayed for months since attorney Edward G. Williams challenged USADA's hearing process in U.S. district court. Williams, whose motion involving Jacobs was dismissed two weeks ago, and other attorneys argue that USADA's arbitration system is unfairly stacked against the athletes.
"The feeling among athletes and attorneys in this country is that the best place for due process is in the U.S. courts," said Jerrold Colton, the attorney for White.
Olympic officials are worried that USADA won't act in time, won't have sufficient evidence, or won't be able to keep athletes from attempting to circumvent the prescribed arbitration system. The concern is heightened given the unusual cases with which they are dealing: Most involve non-analytical positives, meaning USADA is expected to charge athletes with drug use despite a lack of positive drug tests. A month ago, the agency received tens of thousands of pages of information on drug use among athletes from a federal raid of BALCO last fall.
"If USADA doesn't have [a failed drug test] on an athlete, they're going to have to prove beyond a reasonable doubt that a prohibited substance was present," said Gaines's attorney, Cameron Myler. "And they have to do that based on circumstantial evidence."
The Amateur Sports Act, the law that created the USOC, requires that athletes receive a hearing before they can be suspended. IAAF rules, however, allow for provisional suspensions for athletes who are charged with doping violations. U.S. Olympic officials are concerned about clashes in the two policies, as athletes with pending hearings would be free to compete in the U.S. Olympic trials but likely barred from the 2004 Summer Games.
"We cannot suspend without due process," USOC CEO Jim Scherr said. But "the IOC determines whether or not an athlete is eligible [for the Olympics]. Those groups generally aren't as concerned about U.S. court rulings as the USOC might be."