Quite independently of Lance, with whom I wrote two books, for a long, long time I’ve had serious doubts about the motives, efficiency and wisdom of these “doping” investigations. In the Balco affair, all the wrong people were prosecuted. It’s the only so-called drug investigation in which the manufacturers and the distributors were given plea deals in order to throw the book at the users. What that told us was that it was big-game hunting, not justice. It was careerist investigators trying to put athletes’ antlers on their walls. Meanwhile, the Fourth Amendment became a muddy, stomped-on, kicked-aside doormat.
So forget Lance. I have so many problems with USADA, the World Anti-Doping Agency and the Court of Arbitration for Sport (CAS) — which is supposed to be where athletes can appeal, only they never, ever win — that it’s hard to know where to begin. American athletes have lost 58 of 60 cases before the CAS. Would you want to go before that court?
Anyone who thinks an athlete has a fair shot in front of CAS should review the Alberto Contador case. Contador was found to have a minuscule, insignificant amount of clenbuterol in his urine during the 2010 Tour de France. After hearing 4,000 pages of testimony and debate, CAS acknowledged that the substance was too small to have been performance-enhancing and that its ingestion was almost certainly unintentional.
Therefore he was guilty. He received a two-year ban.
CAS’s rationale? “There is no reason to exonerate the athlete so the ban is two years,” one member of the panel said.
Would you want to go before that court?
The decision was so appalling that even the Tour runner-up, Andy Schleck of Luxembourg, couldn’t swallow it and refused to accept the title of winner. “There is no reason to be happy now,” Schleck said. “First of all, I felt bad for Alberto. I always believed in his innocence. . . . I battled with Contador in that race and I lost.”
The former prime minister of Spain, Jose Luis Rodriguez Zapatero, had openly declared his belief that Contador was innocent. When the CAS ruling came down, Zapatero expressed “bewilderment” and suggested it was so irrational it gave “sufficient reasons to open a debate about their fairness.”
The response of WADA President John Fahey? A rant in which he suggested that Contador was given a two-year ban instead of one because Zapatero had dared to open his mouth. Let me repeat: The president of WADA actually suggested publicly that an athlete’s penalty was made harsher because his prime minister had the nerve to challenge WADA’s authority.
Again, would you want to go before that court?
When are people going to grow sick enough of these astonishing overreaches and abuses to do something about it? As my friend Tommy Craggs has written for Deadspin, WADA and USADA have become “a gang of moralizing cranks . . . and it is beyond me why an organization that wants to ban caffeine again hasn’t yet gotten laughed out of polite conversation.”
You can put me down on that side of the argument. You can also put me down on the side of professional basketball player Diana Taurasi, who has called the international drug testing bureaucracy “one of the most unfair processes you can be put through,” and attorney Howard Jacobs, who makes his living going before CAS. He told USA Today, “A lot of times athletes are getting run over in the quest for clean sport.”
How does an agency that is supposed to regulate drug testing strip a guy of seven titles without a single positive drug test? Whether Armstrong is innocent or guilty, that question should give all of us pause. How is it that an American agency can decide to invalidate somebody’s results achieved in Europe, in a sport it doesn’t control? Better question, how is it that an American taxpayer-funded organization can participate in an adjudication system in which you get a two-year ban because “there is no reason to exonerate” you? At what point is such an organization shut down and defunded?
In his decision last week, U.S. District Judge Sam Sparks declined to intervene in USADA’s case against Armstrong because to do so would “turn federal judges into referees for a game in which they have no place, and about which they know little.” But in the next breath Sparks expressed an opinion on certain matters he does know about. “The deficiency of USADA’s charging document is of serious constitutional concern,” he wrote. “Indeed, but for two facts, the court might be inclined to find USADA’s charging letter was a violation of due process and to enjoin USADA from proceeding thereunder.” Among other things, he was disturbed by USADA’s “apparent single-minded determination” to go after Armstrong and force him before CAS.
All of which I find far more worrisome than the question of whether he may have transfused his own blood in trying to climb a mountain on a bike. It wasn’t a judge’s job to intervene with USADA. But it most certainly would seem to be the job of Congress. The WADA-USADA system is simply incompatible with the U.S. legal system.
For previous columns by Sally Jenkins, visit washingtonpost.com/